Cross posted from EJIL:Talk!
The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]
South Africa’s Reasons for Withdrawal
The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:
“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”
The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:
“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.
Does the ICC Statute Require States to Violate the Customary International Law of Immunity?
I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. The South African government is of course right that there are state officials who ordinarily, under customary international law and certain treaties, have immunity from arrest by other states, even when they are accused of international crimes (as held by the ICJ in the Arrest Warrant case). But this does not automatically mean that complying with the ICC Statute would result in a breach of obligations that would otherwise exist.
One scenario would be the case where an official of a state that is not a party to the ICC Statute, and where there is no Security Council referral, is wanted by the ICC. Although the Rome Statute might provide for lack of immunity (Art. 27), under the law of treaties, nothing in the Rome Statute can remove the immunity which belongs to those third states. This is because the immunity is a right of the third state and that right cannot be taken away by a treaty that it is not a party to. It is precisely this scenario that Article 98 of the Rome Statute intends to deal with, and that provision should mean that an ICC party is not put in the position of having to arrest officials of a state not party to the Rome Statute [unless in my view there has been a Security Council referral which has the effect of removing that immunity].
A second scenario, relates to officials of state parties to the Rome Statute wanted by the ICC. If the Rome Statute requires their arrest, then those states have by becoming parties to the Rome Statute, agreed that their immunity under customary international law should not be given effect to. So in such a case there would also be no violation of customary international law.
Third, we have the situation of an official of a state not party to the Rome Statute but in respect of which there is a Security Council referral]. Assuming that I am correct, as I have previously argued (in this post here and more fully in this article here), that the Security Council referral has the effect of making the Rome Statute applicable to the state concerned and removes the immunity in that situation, then again there is no customary law immunity to violate. So in my view South Africa would not have been in breach of its customary international law obligations with regard to Sudan had it acted in accordance with its Rome Statute obligations in the Bashir case.
In short, if the immunity position under the Rome Statute is properly construed, there would be no violation of customary international law.
The ICC Statute and Conflicting Treaty Obligations
To the extent that the immunity is derived from a treaty the situation described in scenario 1 would be unchanged. It would also be unchanged in the third scenario above (assuming my argument about the effect of the Security Council resolution is correct) because of the effect of Article 103 of the Charter. In the second scenario where both South African and the other state are parties to the Rome Statute, where the immunity is derived from a treaty that predatesthe Rome Statute there would similarly be no violation of international law by carrying out Rome Statute obligations because the Statute as the latter in time treaty would prevail (See Arts. 30(3) & (4)(a) of the Vienna Convention on the Law of Treaties 1969). Problems only arise where a Treaty was concluded after the Rome Statute which accords immunity from arrest. As I argue in this 2003 article here there would be nothing in international law to suggest that the Rome Statute obligations prevails, as between the two states, over the other treaty. In such a case, the state would have conflicting obligations each of which would remain valid and for breach of which it would bear responsibility. However, in such a case, it would be South Africa that has put itself in the position of undertaking obligations that are inconsistent with its Rome Statute obligations.
Conflicts between South African law and Customary International Law
The South African government appears to argue that it is put in the position of having to withdraw from the ICC Statute because of the inconsistency between the South African Act implementing the ICC Statute on the one hand, and customary international law of immunities and South African legislation on immunities on the other hand. As I discussed in a previous post, the South African Supreme Court of Appeal interpreted the implementing Act in a manner which did seem to create a conflict between customary international law and South African law. However, withdrawal from the Rome Statute is a rather drastic way of solving a domestic problem. The proper course of action would have been to appeal that decision, which the South African government did, and to put its arguments to the Constitutional Court (as it has already done in written submissions) and wait to see if the Constitutional Court would correct the earlier decision. Instead, the South African government now says that it need no longer pursue the appeal (which was due to be heard next month) in the light of its withdrawal from the ICC Statute. This is particularly odd as this would mean that the judgment of the Supreme Court of Appeal stands for as long as the implementing Act is not repealed and presumably South Africa remains a party to the ICC Statute (which it will be for the next year).
It is unfortunate that the expansive decision by the South African Supreme Court of Appeal in the Bahsir case on the interpretation of its domestic implementing legislation in the Bashir case and perhaps also the overly expansive decisions on immunity by the ICC have given the South African government a pretext for withdrawal. However, the ICC did make attempts to reverse that jurisprudence (though sadly never explicitly) and the South African government has not given its own courts a chance to do the same.
Many groups have issued statements in response to the decision of the South African government, I will conclude by drawing the attention of readers to a statement released by the Africa Group for Justice and Accountability, a group of 12 African experts on international criminal law and human rights (including former chief prosecutors and judges at the ICTY, ICTR and ICC) of which I am a member.