As a result of the investigations by the ICC, President Al-Bashir stands accused of serious international crimes, including war crimes, crimes against humanity and charges of genocide. The decision of the ICC unequivocally rejects immunity being held as a defence. In doing so, this affirms what is perhaps the ICC’s raison d’être – to end impunity for perpetrators of gross human rights violations.
Importantly, the ICC’s decision shores up what South Africa’s Supreme Court of Appeal (SCA) has previously held – that when South Africa signed and ratified the Rome Statute establishing the ICC, this was on the understanding that all forms of immunity, including Head of State immunity, would not prevent the prosecution of international crimes in the country. This important affirmation by an international body of South Africa’s Judiciary, comes at a time of repeated attacks in the media on the Judiciary by members of the Executive, as well as individuals from the governing party.
The ICC however declined to refer South Africa’s non-compliance to the ICC’s Assembly of States Parties and the United Nations Security Council on the basis that South Africa had, prior to allowing President Al-Bashir into the country, engaged the ICC on whether Al-Bashir, as a Head of State, enjoyed immunity. Despite the ICC’s negative response in that regard – South Africa still went on to host him and later tried to use the Host Agreement signed between the African Union and South Africa as the basis for granting him immunity from arrest. This despite the express provision of article 27(2) of the Rome Statute, which expressly states that immunity ordinarily granted to officials cannot be a bar to the jurisdiction of the ICC. As the ICC pointed out – South Africa tried to cynically use the law to escape a political entanglement.
Despite the absence of a judicial remedy from the ICC – possibly out of diplomatic deference – it is noteworthy that the ICC decision considered that the Government had withdrawn its challenge to the SCA ruling and viewed this withdrawal as South Africa’s tacit acceptance of wrongdoing.
The just-ended Policy Conference of the governing party revealed many fissures within the party – but worryingly, South Africa’s withdrawal from the ICC was one matter which found broad consensus. It is of concern that narrow party-political interests appear to be placed before the interests of the South African public. There is no other international court on the continent with the same jurisdiction of the ICC. As such, the real victims of South Africa’s withdrawal from the ICC will be people from the African continent.
The ICC’s decision brings greater clarity to how international law should be applied. In the face of seemingly contradictory provisions on immunity, ranging from customary international law through to jurisprudence from international tribunals, including the International Court of Justice, it was necessary for the ICC to make a pronouncement on South Africa’s failure to arrest and surrender President Al-Bashir.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights