International Criminal Justice on the March?

Cross-posted from EJIL:Talk!

March been a significant one for international criminal justice with a series of high profile judgments by the ICC and the ICTY. There has been the conviction of the former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba Gombo, on the basis of superior responsibility, for war crimes and crimes against humanity committed in the Central African Republic. Then we have had the conviction of Radovan Karadzic, including for genocide (see Marko’s commentary here). We also have the Seselj judgment due at the ICTY. In addition, last week saw two ICC cases in which charges were confirmed by the pre-trial chamber (see here and here). Confirmation of charges involves a lower standard than conviction, with the requirement at confirmation being that there “is sufficient evidence to establish substantial grounds to believe” that the accused committed the crimes charged (Art. 61(7) of the ICC Statute) as opposed to proof beyond a reasonable doubt. However, confirmation is still a significant development and in one of those cases,  Prosecutor v. Ahmad Al Faqi, it appears that the accused will plead guilty to those charges.

What is significant about these cases is not so much the development of the law or jurisprudence but rather the sense that international criminal justice seems to be on the march in its task of speaking law/justice/truth to power. We have a judgment against a former Vice President of a state, against a leader of an entity claiming to be a state and the prosecution of parts of the leadership of non-state groups that have wreaked significant destruction and misery.

However, we have also had in March one domestic decision dealing with a serving head of state that both serves to remind those in power about the demands of international criminal justice but that also reminds us of the difficulties in the field. This is the decision of the South African Supreme Court of Appeal in the case relating to the failure of the South African government to arrest Sudanese President Bashir when he visited South Africa for the African Union Summit in June 2015 (see judgment here). As I will explain in a post tomorrow, that decision could have far reaching consequences with regard to the  immunity of heads of states from South African jurisdiction, even in cases that are unrelated to ICC prosecutions.

The facts leading to the Bashir case are well known. The ICC issued two warrants for the arrest of President Bashir in 2009 and 2010. He was invited to attend the African Union summit in June last year and while there an order seeking his arrest was sought. Although the High Court in South Africa issued an order requiring that he should not be permitted to leave the country, the South African government permitted him to do so before the High Court could consider the request on its merits. The High Court subsequently held that this was unlawful. Under Part IX of the ICC Statute, states party to the Statute, including South Africa, have obligations to cooperate with the Court. These cooperation obligations include the obligation to arrest and surrender those wanted by the Court. Despite the outstanding ICC arrest warrant for Bashir, he has travelled to numerous States many of which are parties to the ICC Statute. The failure of states to arrest Bashir and his ability to thumb his nose at the reach of ICC demonstrates the complexities of the environment around international criminal justice. The matter has been complicated both by the politics of the relationship between the ICC and African States, but also by the unresolved legal questions that arise from the fact that ordinarily international law provides that serving heads of states are immune from the criminal jurisdiction of other states, including immunity from arrest and personal inviolability when such persons are accused of committing international crimes (see the Arrest Warrant decision of the ICJ). The legal question that has arisen with respect to Bashir is whether the immunity of serving heads of state from the domestic jurisdiction of other states persists in cases in which national authorities are asked to arrest a head of state wanted for prosecution by the ICC. The matter is further complicated when, as in the case of Bashir, the head of state in question is the head of a state that is not a party to the ICC Statute.

Tomorrow, I will discuss the South African Supreme Court decision in the Bashir and explain its implications not just for South African cooperation with the ICC but for immunity of heads of states more generally. Later in the week, I will address one possible way of breaking the deadlock between African states and the ICC with regard to the Bashir saga – this is the prospect of an advisory opinion from the International Court of Justice on the issue. This suggestion was first made by the African Union Assembly (of heads of states and government) in 2012. I discussed that suggestion (here and here) at the time but will return to it again in view of the lack of progress in clarifying the relevant legal issues that have been at play in this long running debate.