In a judgment in July, the Pre-trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunity for heads of state who are alleged to have committed international crimes.
It did so in a case involving SA’s failure to arrest President Omar al-Bashir of Sudan when he attended the AU heads of government summit meeting in Johannesburg in June 2015.
While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-member chamber reached the unanimous conclusion that SA had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan.
The Pre-trial chamber found that state parties to the Rome Statute, such as SA, are required to arrest and surrender Bashir to the ICC where he is found in their territory.
The judgment comes at a fraught political time for the ICC and its relationship with African states and the AU. The concern of African state parties (such as SA) regarding their obligations to co-operate with the ICC in surrendering heads of states of non-state parties (such as Sudan) to the court is legitimate in the light of, among other things, the rules of customary international law on immunity.
The technical legal issues relate to the relationship between articles 27 and 98 of the Rome Statute, which have been raised by a number of African states, particularly SA in relation to the Bashir case, as well as the AU.
This has been a central concern of the AU and ICC member states seeking measures to reform and improve the court.
The concern is how to balance the obligations owed to the ICC to arrest heads of state with the customary international law immunities that are ordinarily accorded to such officials.
African states have felt the brunt of what have been described as "competing obligations" — being pulled in one direction to assist the ICC and in the other direction by customary international law duty to respect official immunities.
Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the duty to arrest Bashir and the duty to respect his immunities.
In the lead-up to the chamber’s finding on July 6, SA had been invited by the ICC to make submissions to the chamber, explaining its reasons for failing to arrest Bashir. The prosecutor of the ICC filed submissions in response. And the chamber admitted the Southern Africa Litigation Centre, which brought cases in SA’s courts successfully challenging the government’s failure to arrest Bashir, to make submissions.
We were on opposing sides in that dispute (with Tladi acting for the government and Du Plessis as counsel for the Southern Africa Litigation Centre). We nevertheless have a shared belief that there remains a need for the dispute to be resolved finally through judicial means.
There can be no serious debate that the question of immunities of heads of state remains one of the most pressing issues before the ICC
In written submissions filed with the chamber, the government made the point that the issues were sufficiently important that if the decision went against SA, the matter should proceed automatically for final determination on appeal. The need for a final judicial settlement remains imperative for a number of reasons. The chamber decision is not a unanimous one and the reasoning by the minority judge confirms that there is no clear legal position (despite the majority suggesting otherwise) on a number of contested points of law.
The problem of Bashir and his travels beyond Sudan is not limited to SA. It is clear he intends to continue to travel to state parties of the Rome Statute and if he does, particularly to an African country that is a state party, that government may face a similar conflict.
There can be no serious debate that the question of immunities of heads of state remains one of the most pressing issues before the ICC. That was so before the decision of July 6 (with countless academic articles offering differing legal conclusions, not helped by conflicting chamber decisions that preceded the decision against SA).
While the July 6 decision presents itself as the answer to the legal questions arising, it cannot pretend to be the last word on the matter. The AU is likely to weigh in on the decision following a meeting in September, and the ANC policy conference decided that SA will withdraw from the ICC, in part because of the court’s position on immunities.
In this climate, a final conclusive determination on the legal issues remains imperative.
There are various possible pathways to a final judicial determination on the matter. The first possibility is a decision by the Appeals Chamber of the ICC. The Pre-trial Chamber’s decision is subject to appeal by SA. While the formal period for noting an appeal has passed, SA may well seek condonation for a late filing. If it seeks to appeal, the ICC should accept it with open arms, as should all supporters of the international criminal justice project.
If SA does not appeal, the possibility remains that Jordan, in the likely event that the Pre-Trial Chamber decides that there is a duty on the country to arrest Bashir, could appeal against the decision to permit the ventilation of the legal question.
While the rules do not expressly provide for the Appeals Chamber to take up the matter, given the importance of the issues, it might also decide to hear arguments on the issues.
The Assembly of States Parties could resolve to submit the matter to the Appeals Chamber for resolution. A decision by the Appeals Chamber that resolves outstanding contradictions pertaining to co-operation with the ICC and the rules on immunity would enhance the integrity and legitimacy of the court.
The possibility also remains that the International Court of Justice may be approached, either by the General Assembly or the UN Security Council. An advisory opinion from the court would have both advantages and disadvantages. One advantage is that, as a court of general jurisdiction, the International Court of Justice may be best placed to take a holistic view of all areas of international law. The disadvantage, however, is the real risk of creating tension between two independent courts of international law.
Whatever pathway is followed, the issues of substance that remain for final determination are simply too important to be shut out by fealty to formalities. There is a need to continue to ensure that the concerns of states are respectfully and effectively considered by the court.
• Du Plessis is an advocate specialising in international criminal law; and Tladi is professor of international law at the University of Pretoria, special adviser to the minister of international relations and co-operation and member of the UN International Law Commission. They write in their personal capacities.
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