On March 4, 2009, the Pre-Trial Chamber of the ICC issued an arrest warrant for President Omar Hassan Ahmad Al Bashir. The Pre-Trial Chamber held that it was satisfied that there were reasonable grounds to believe that he is criminally liable under Article 25(3) (a) as a direct perpetrator or as an indirect co-perpetrator for War Crimes and Crimes against Humanity. The situation in Sudan was referred to the ICC by the UN Security Council under the powers in Chapter VII of the UN Charter in maintaining international peace and security. Sudan is not a state party to the ICC.

On July 4, 2010, a second arrest warrant was issued for Omar Al Bashir, this time for the Crime of Genocide under Article 6 of the Statute.

The Al Bashir warrant is one of many ‘firsts’. This was the first time the jurisdiction of the ICC with regard to a non state party would be tested, and consequently the first time the Court would seek to exercise jurisdiction over nationals of a non state party. Also, this warrant marks the first time the Court would seek to exercise his jurisdiction over a sitting president, who ordinarily under international norms, custom and conventions is entitled to head of state immunity.

After the warrants of arrest was issued, President Al Bashir visited certain African states including Chad (in 2010, 2011 and 2013), Malawi (in 2011) and Nigeria (in 2013)and all 3 states failed to execute the Court’s request for arrest and surrender. Malawi for instance invoked the head of state immunity for non member states.

President Al Bashir is currently attending the AU Summit in South Africa. An interim order has been granted preventing him from leaving the Republic until the Court hears the application for his arrest and surrender to the ICC.

Immunity Deconstructed

Under customary international law, it is no longer in dispute that incumbent heads of state, when facing domestic charges of international crimes, are entitled to immunity from arrest and from criminal prosecution in the territory of foreign states. It was held by the International Court of Justice in the Arrest Warrant Case that the issuance of the arrest warrant by the Belgian judicial authorities against the incumbent Minister of Foreign Affairs of the Democratic Republic of the Congo breached the international customary rules on personal immunities accruing to the minister. This would also be the case for a head of state. It must be noted that this is with regards to a domestic arrest warrant emanating from a national court against a foreign official. Although the ICJ left a lot of questions unanswered with regards to international arrest warrants, it nonetheless stated that personal immunity is not a bar to the exercise of jurisdiction of a competent international criminal court such as the ICTY. The ICC warrant on the other hand presents an entirely different scenario.

It is important to note that one of the Nuremberg Principles, which is referred to as the birth certificate of international criminal law, is the irrelevance of official capacity and immunity. The Rome Statute toes this line and departs entirely from the traditional notion of head of state immunity under customary international law. It provides in Article 27(1) as follows;

‘[T]his Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.’

Article 27(2) concludes;

‘[I]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

Interpreting the above provisions correctly would imply that as long as the ICC possesses jurisdiction over a particular case, an international arrest warrant can validly be issued and circulated, prosecution and sentencing can be carried out by the ICC, the personal immunities of that individual in question notwithstanding.

It is acknowledged generally in international criminal law that state parties to the Rome Statute have relinquished the immunity of their head of state and senior officials by virtue of membership; the burning question is what happens in the event of non-member states like Sudan who has been brought to the Court through the side door of the UN Security Council referral and has not given away their immunity in any way.

There are a plethora of practical difficulties involved in this situation. The problematic is the exercise of the jurisdiction. By nature, the Court requires the support and the assistance of state parties to enforce the warrant that has been issued. This is because there can be no trial in absential and the arrest of the suspect must be enforced by a State party in other that the suspect may stand trial before the Court. The Court has in this vein transmitted a request for the arrest and surrender of President Al Bashir to all state parties and to all UN Security Council members that are not state parties.

Any state party that intends to enforce the arrest of President Al Bashir needs to weigh carefully its international legal obligations under customary international law side by side its obligations as a state party to the ICC. Needless to say, this would be a very difficult legal, political and diplomatic decision to make.

Another question that agitates my mind is what would happen to the functions of office of the president assuming he is arrested today and handed over to the Court indefinitely. There isn’t a clear provision for this situation in the statute.

Omar-al-BashirSouth Africa and the ICC

Although state parties to the Rome Statute are not obliged to incorporate the substantive criminal law into their domestic law, under Article 88, all state parties must ensure that there are procedures available under their national laws for cooperation with the Court.

South Africa is one of the few African states that have directly incorporated the provisions with relations to the ICC crimes into its laws. Indeed, South Africa was the first state in Africa to fully implement the Rome Statute. The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (‘the ICC Act’) provides a basis for the domestic criminalization of the Rome Statute Crimes and provides a legal framework for cooperation between South Africa and the Court.

This is a higher level of responsibility to the Court unlike states that have only signed but not incorporated the Statute.

So far, it seems that the South Africa requires its citizens and civil society to continually put pressure for the State to uphold its international legal obligations particularly under the Rome Statute and the ICC Act.

In Southern Africa Litigation Centre and others V National Director of Public Prosecutions and others, a similar situation ensued. In the recent decision of the Constitutional Court, the decision of the High Court and the Supreme Court of Appeal was affirmed. The Court stated that the State is bound by its legal obligations under the Statute and more importantly the ICC Act to investigate crimes of torture alleged to have been committed in Zimbabwe. Although this is with regards to issues of universal jurisdiction, the principle applies. The international legal obligations of a state under treaty law and its own laws cannot be ignored under any circumstances.

South Africa has the legal obligation to arrest and surrender President Omar Al Bashir to the ICC under the Rome Statute and its ICC Act. This present situation is an opportunity for South Africa to prove to the world that it is alive to its responsibilities and treaty obligations and it would not allow impunity to hold sway under its watch.

Article 98 of the Rome Statute

‘[T]he 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 or 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 provision quoted above remains a thorn in the flesh of the ICC in requesting the surrender of President Al Bashir from South Africa. What happens to the international legal obligations of South Africa to respect the immunity of President Omar Al Bashir under customary international law? If South Africa proceeds to surrender President Omar Al Bashir, isn’t this inconsistent with its international legal obligations? Does the UN Security Council as a trigger mechanism strip President Al Bashir of his immunity under customary international law? Is this a classic case of the ICC biting more than it can chew?

So many questions without ready answers, the next few weeks would undoubtedly be interesting times in the sphere of international criminal law.

Victoria Ojo-Adewuyi is a Terrific Lawyer, Teacher and Coach. Award winning legal head interested in Space Law, Human Rights and International Criminal Law

http://www.mustardpressng.com/blog/omar-al-bashir-arrest-warrant-issued-what-are-south-africas-options/