TEXT: South Africa legally rebuts AU resolution on arresting Bashir

August 3, 2009 (WASHINGTON) — South Africa formally announced that it will not abide by the African Union (AU) resolution taken last month to halt cooperation with the International Criminal Court (ICC) in arresting Sudanese president Omer Hassan Al-Bashir.

The position came after weeks of controversy within South Africa particularly after NGO’s challenged the endorsement by Pretoria saying it violated the law of the land.

South African officials have said afterwards that they are seeking legal advice on whether the AU resolution conflicts with its international obligations and the constitution.

The South African Department of Foreign Affairs issued a detailed statement outlining its final position on the AU resolution from a legal and political perspective.

The statement reveals that the ICC arrest warrant for Bashir “has been received and endorsed by a magistrate”.

“This means that if President El Bashir arrives on South African territory, he will be liable for arrest,”.

According to the statement if South Africa was to comply with the AU resolution this would violate the constiution that is based on “values of human dignity, the achievement of equality and the advancement of human rights and freedoms”.

“Ascension to the AU Assembly Decision….will negatively impact on our international reputation and stature as observed during South Africa’s non-permanent membership to the UNSC”.

Furthermore the South AFrican foreign ministry said that arguments raised by African politicians that the ICC is targeting only the continent is not accurate.

“It should be noted that while this argument is true, three of the four cases were self-referral, only the Sudan case was referred to by the UNSC. Some analysts argue that the focus on Africa should be celebrated rather than criticised as the ICC was created in order for the perpetrators of worst atrocities, regardless of rank and status, would be brought to account”.

However, the Department International Relations and Cooperation’s Director- General, Ayanda Ntsaluba said that he does not expect Bashir to visit anytime soon.

“I say for now it is a theoretical thing because I don’t believe that President Al Bashir would go out of his way to want to test what choice SA will make” Ntsaluba said.

The South African official critcized some unspecified parties ” jumping into conclusions” who “seemed to anticipate that SA would take the view of acting against its own laws and therefore in preference of the decision of the AU”.

“In our case its quite clear our entire democratic dispensation is based on legality and that what happened at this moment as we speak, its quite clear to me that actually the legal provisions would have to take their course, Because any interference with that would be taken actually as violations of our constitutions” he said.

Below is the full text of the statement by South Africa’s foreign ministry.

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The ICC Prosecutor Mr Luis Moreno-Ocampo’s indictment of President Omar Al Bashir of the Sudan under Article 58 of the Rome Statute of the ICC generated much controversy.

Two schools of thought emerged on how best the AU could react or deal with this precedence setting matter. The first argued for Africa’s unity of purpose in rejecting this indictment as it was setting a dangerous precedence of indicting a sitting Head of State. The second and counter view to the first argued that a total rejection of the indictment would by implication be interpreted as endorsing the much reported gross human rights violations in Darfur.

As a result it argued that the indictment be deferred while all efforts are deployed towards finding lasting solutions to the Darfur crisis and broadly the situation in Sudan. Key to this approach was a need to strike a balance between the imperatives of peace against those of justice without creating an impression of promoting impunity.

It is within this context that the 142nd Meeting of the Peace and Security Council (PSC), held in July 2008, called for the deferment of the indictment; and directed the AU Commission to urgently establish a High Level Panel on Darfur. The objective of the Panel would be to investigate ways of addressing the twin challenges of “accountability and combating impunity, on the one hand, and reconciliation and healing on the other”.

The PSC Communiqué was endorsed by the 12th Session of the AU Assembly held in Addis Ababa, Ethiopia in February 2009. The Summit directed the AU Commission to establish a panel of eminent personalities called the AU Panel on Darfur (AUPD) under the leadership of former President Thabo Mbeki. The AUPD’s mandate is to undertake an in depth examination of the Darfur situation and develop a roadmap towards “combating impunity, on the one hand, and the reconciliation and healing, on the other…”. The AUPD is expected to present its outcomes by September 2009.

The Assembly further directed that a high level delegation from the AU meet with the UN Security Council (UNSC) with the intention of urgently requesting a deferment in line with Article 16 of the Rome Statutes establishing the ICC. Article 16 authorises the UNSC to effect a deferment for a period of a year, renewable. When taking this decision to approach the UNSC the AU was alive to the fact that the UN as a custodian of multilateralism is primarily charged with the responsibility of maintaining international peace and security.

However, the failure by the UNSC to acknowledge the AU decision and agree to meet with the AU delegation did not assist in the resolution of this matter. Furthermore, it deepened the perception that Western powers treated African leaders with contempt. The July 2009 decision should therefore be viewed as another attempt by the AU Heads of State to engage the UNSC in deferring the indictment for at least a year to allow the Panel on Darfur finalise its report by September 2009.

A. THE ISSUE OF THE WARRANT OF ARREST OF PRES AL BASHIR

To provide a report on the African Union (AU) Assembly decision on African Indicted Personalities by the International Criminal Court (ICC) and the implications thereof.

On 03 July 2009, during the AU Summit held in Sirte, Libya, the AU Assembly held a discussion on African Indicted Personalities by the ICC, which was prompted by the issuance of the warrant of arrest against President El Bashir by the ICC. During the discussion, the AU General Assembly took a decision that, “in view of the fact that the request by the African Union [for the United Nations Security Council to invoke Article 16 of the ICC Statute in the case against President El Bashir of the Sudan] has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome statute of the ICC relating to immunities, for the arrest and surrender of African indicted personalities”.

B. Legal Implications

South Africa is the State Party of the Rome Statute of the International Criminal Court and is therefore obliged to cooperate with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court (Article 86), and hence also in the execution of arrest warrants. It is worth noting that Article 87(7) of the Statute provides that, when a State Party fails to comply with a request to cooperate, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties, or in the case of a United Nations Security Council (UNSC) referral to the UNSC.

Article 27 of the Rome Statute provides that the official capacity as Head of State or Government of an accused provides no exemption from criminal responsibility. Furthermore, Section 4(1) of the South African Implementation of the Rome Statute of the International Criminal Court Act also ousts the applicability of other domestic laws in respect of an accused, with the result that the immunity from prosecution that President El Bashir would normally have enjoyed in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), is not be applicable.

An international arrest warrant for President El Bashir has been received and endorsed by a magistrate. This means that if President El Bashir arrives on South African territory, he will be liable for arrest.

The AU decision aims to obligate AU Member States not to cooperate with the ICC with regard to the arrest and surrender of “African indicted personalities”. In this respect, the decision aims to cover persons indicted with regard to all the situations in Africa, namely Sudan, the Democratic Republic of Congo, Northern Uganda and the Central African Republic.

Article 98, which is referred to in the Decision, creates two situations which aims to stop the Court from proceeding with a request for surrender, and reads as follows:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State of diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of a sending State for the giving of consent for the surrender.”

The situation foreseen in Article 98(1) will not be applicable in South Africa as Section 4(1) of the Implementation of the Rome Statute of the International Criminal Court Act, ousts the applicability of immunities conferred by the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), and President El Bashir (or any other “African indicted personality”) will not be able to enjoy immunity against the provisions in the Act on South African territory.

It appears that the AU Decision is based on a decision by the International Court of Justice that held that the indictment of a Foreign Minister of the Democratic Republic of Congo by Belgium in terms of its domestic law, was in violation of Belgium’s obligations in terms of the international law applicable to immunities (DRC v Belgium (Yerodia Case), ICJ, 2006. It is submitted that due to the position in South African domestic law as set out above, the finding in this case will not be applicable. In any case, it was also held in the Yerodia case that an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, when such courts have jurisdiction.

Article 98(2) aims to prevent a conflict between an international agreements to which a State was party to before acceding to the Rome Statute or before a request for arrest was made, which provided for a situation where the consent of another State is required before a person of that State can be surrendered to the Court, and the provisions of the Rome Statute. It appears, also from Paragraph 10 of the Decision, not to be applicable to South Africa because South Africa has not concluded an agreement of that nature with the Sudan or any State.

C. Political Implications

South African common law treats international law as part of municipal law, and this has been given constitutional endorsement by section 232 of the Constitution, which provides that, “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” South Africa also prides itself as a country that respects the rule of law, including international law and the struggle for a rules based international system.

Furthermore, South Africa’s constitution is based on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms”. Ascension to the AU Assembly Decision will signal non-adherence to the above, which will negatively impact on our international reputation and stature as observed during South Africa’s non-permanent membership to the UNSC.

There has been an outcry by some analysts and leaders from the Continent that the ICC seem to be focusing only on Africa, as the four cases currently before the Court are African cases. It should be noted that while this argument is true, three of the four cases were self-referral, only the Sudan case was referred to by the UNSC. Some analysts argue that the focus on Africa should be celebrated rather than criticised as the ICC was created in order for the perpetrators of worst atrocities, regardless of rank and status, would be brought to account.

It should be noted that Panel on Darfur, led by former President Thabo Mbeki, is still conducting its work and is yet to present its findings. The Panel is supposed to propose a roadmap on how the Sudan should deal with the issues of justice for crimes committed in Darfur. The recommendations of the Panel are likely to raise pressure on the government of the Sudan to engage in serious efforts to address the injustices and crimes against humanity since 2003. If it does commit to deal seriously with those issues one can envisage a situation where pressure for the ICC to deal with the situation in Darfur would be alleviated.

Proposed Position regarding the AU Decision

It is therefore proposed that

South Africa reiterates its commitment towards the fight against impunity, the rule of law, including the Rome Statute of the International Criminal Court.

Urge the United Nations Security Council to invoke Article 16 of the Rome Statute, while strongly urging the Sudanese authorities and the other Parties to the Darfur conflict to work towards a comprehensive peace agreement in Darfur that will also address the issue of justice for the victims of Darfur. Such a move by the Security Council should be done in the light of the recommendations of the AU Panel on Darfur which will likely up the stakes for the Sudanese government to seriously address the issues of impunity in Darfur.

(ST)