Non-compliance with a twist: Some thoughts on the ICC's decision on South Africa's failure t

As reported last week, Pre-Trial Chamber (PTC) II of the International Criminal Court (ICC) found that South Africa had failed to meet its obligation to arrest and surrender Sudan's President Omar Al-Bashir (Al-Bashir) when he attended the African Union (AU) Summit in South Africa in June 2015. Al-Bashir is suspected of various crimes under the ICC's substantive jurisdiction, including genocide.

The decision was highly anticipated and the finding of non-compliance on the part of South Africa widely expected. The judgment addresses complex and controversial legal issues involving immunity, non-member states, state cooperation and United Nations Security Council (UNSC) referrals. Other notable aspects of the decision include the decision not to refer South Africa to the Assembly of State Parties (ASP) or UNSC the as well as the minority opinion of Judge Marc Perrin de Brichambaut.

The majority judgment is very usefully divided into two sections, each of which will be discussed below. The first part of the court's analysis addresses South Africa's obligations under the provisions of the Rome Statute. The second part reflects on the justifiability and necessity of referral of South Africa to external bodies.

South Africa's obligations under the Rome Statute

Essentially, the majority of the Chamber (Judges Cuno Tarfusser and Chang-ho Chung) took the view that Sudan was bound by the Rome Statute under the "sui generis regime" arising when a situation is referred to the Court via provisions in the UN Charter. As such, it was held that Sudan should effectively be treated as if it were a member state of the ICC in respect of any proceeding arising from the Darfur situation (and only that situation). According to the majority, "the effect of a Security Council resolution [in this case Security Council Resolution 1593 (2005)] the Court’s jurisdiction under article 13(b) of the Statute is that the legal framework of the Statute applies, in its entirety, with respect to the situation referred" [para. 85]. This legal framework includes Article 27(2) of the Statute, which effectively removes immunity from prosecution for sitting heads of states charged with crimes under the Court's jurisdiction. The judgment stresses the vertical and horizontal effect of Article 27 [paras. 76-79]. Thus, Article 27 also has an effect between State Parties to the Statute i.e. South Africa by virtue of its membership and Sudan by virtue of UNSC Res. 1593. However, the PTC reiterated that "the Court may not, in principle, without first obtaining a waiver of immunity, request a State Party to arrest and surrender the Head of State of a State not party to the Statute" [para. 82].

The Court also addressed thorny issues arising from Article 98(1) of the Statute, which provides that:

"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 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 Court held, first, that because the situation had been referred to it by the UNSC, there existed no immunity that could be waived as "[a] waiver can be conceived of only where immunity applies" [para. 96]. Second, even if Article 98 applied, it would not have conferred on South Africa a right to refuse to comply with a cooperation request on the basis of its unilaterally held belief in the existence of conflicting obligations under international law. The Court's finding that "article 98 of the Statute addresses the Court, and is not a source of substantive rights (or additional duties) to States Parties" [para. 100] provides welcome clarity and may prove to be useful in future, should any state feel that it is facing a 'grey area' concerning cooperation and immunity.

The referral question - why even bother?

The above-mentioned finding didn't come as much of a surprise. The second part of the judgment, however, was somewhat unexpected in light of previous ICC practice concerning non-compliance. The Court justified it's exceptional treatment of South Africa on the basis of (1) South Africa's good faith and comparatively more pro-active and participatory approach to dispute concerning cooperation and (2) the removal of any further ambiguity under both domestic and international law concerning its legal obligations. The PTC ultimately reasoned that "a referral of South Africa’s non-compliance with the Court’s request for the arrest and surrender of Omar Al-Bashir would be of no consequence as a mechanism for the Court to obtain cooperation" [para. 137]. While this may be true in the specific case of South Africa, one might ask whether the PTC should also have considered the broader, long term consequences of employing this line of thought in response to non-cooperation. Is it in principle acceptable to abandon a justifiable and appropriate route to enforcement on the basis that it would be factually inconsequential? That would leave the ICC just a little short of refusing to issue any further arrest warrants since these don't seem to be of any particular consequence in most cases.

Since this was a relatively clear case of non-compliance and considering the general tone of the judgment, it must be asked what kind of message the Court's decision not to refer South Africa to the ASP or the UNSC will send out to other member states? South Africa was well aware of the Court's position at least a day before Al-Bashir's arrival, if not earlier. The Court noted [at para. 124] that referral is not automatic (as confirmed by the Appeals Chamber) but - apart form the somewhat questionable reasoning based on 'inconsequentiality' above - did not do much to establish criteria that may be applied to identify cases of non-compliance that would not be worthy or referral. That seems strange seeing that such referral is and has been the obvious route following a breach of cooperation obligations. The PTC's approach creates the overall impression that the second part of the judgment is a nod to political realism (or a diplomatic approach) rather than the usual international law idealism. Indeed, many view the decision not to refer South Africa to external bodies as the Court offering an olive branch to South Africa. This may be a smart, even a necessary move. However, if an olive branch was offered, early reports indicate that the offer does not seem to have been well received in South Africa.

Further, addressing the issue of possible referral to external bodies, the PTC stressed that "nothing in the factual considerations expressed in this section of the present decision can be considered as negating or mitigating the Chamber’s conclusion that by not arresting Omar Al-Bashir and surrendering him to the Court South Africa failed to comply with its obligations under the Statute" [para. 126]. While it is true that the decision concerning referral does not affect the finding that South Africa was in breach of its obligations under the Statute, the messaging value of the judgment may have been undercut by the blunt (but also perhaps refreshing?) acknowledgement of the Court's toothlessness with respect to enforcement of state cooperation. In summary, the PTC seemed to reason that (1) a referral would be of no practical consequence with respect to the arrest and surrender of Al-Bashir and (2), on top of the first reason, the lack of a working external mechanism to take measures against states when they breach their obligations under the Statute does not justify a referral as means to ensure cooperation. As argued above, the first line of reasoning can be criticized as a matter of principle. However - although it was not the PTC's primary justification for its decision - the second line of reasoning may be more problematic. The almost self-defeating rationale of the PTC, although factually defensible, represents a dangerous line of thinking about the issue of non-compliance that goes well beyond the specific facts of the case. If the lack of an effective enforcement mechanisms justifies non-referral, any and all cases of non-cooperation would have the same outcome (at least until there is some kind of radical shift of power in the international order). More importantly, the relevant passages are a formal and emphatic acknowledgment by ICC judges that the Court is effectively being hung out to dry by the political bodies that it relies on to ensure state cooperation. This cry for help seems to be a real 'sit up and listen' moment in the short history of the ICC. Whether it will fall on deaf ears remains to be seen...

Minority Opinion of Judge Marc Perrin de Brichambaut

All judges agreed that Al-Bashir did not enjoy immunity from arrest and surrender. However, there was disagreement as to the legal basis for the lack of such immunity. In contrast to his colleagues, Judge Marc Perrin de Brichambaut (in a separate opinion) argued that "the current state of international law" does not allow for "firm conclusions" to be made concerning (1) Sudan's status as sui generis state party by virtue of UNSC referral; (2) the removal of Al-Bashir's immunity by way of said referral; or (3) relevance of immunity under customary international law to the particular set of facts [para. 99]. Instead, he reasoned that immunity for Al-Bashir was lifted by virtue of the fact that both South Africa and Sudan are party to the Genocide Convention, 1948. His argument focused on the interpretation of Articles IV and VI of the Convention. According to Article IV:

"Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." (my emphasis)

According to Article VI:

"Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." (my emphasis)

Judge de Brichambaut identified Al-Bashir as a "constitutionally responsible ruler" and the ICC as an "international penal tribunal" for purposes of the above-mentioned provisions. Accordingly, he concluded that "[t]he combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention" [para. 100].

The minority opinion, although thoroughly argued, does seem like a less logical point of departure for thinking about a legal basis for the irrelevance of immunity. For one, unlike the Rome Statute, the Genocide Convention contains no express provisions on immunity. It is true that the same can be said of UNSC Res. 1593. Then again, unlike treaties targeting the prosecution of serious international crimes, provisions relating to immunity are not normally found in UNSC Resolutions and so the lack of such provisions therein can be therefore be regarded as a less significant omission for purposes of interpretation. Second, the Genocide Convention applies to only one of the crimes in respect of which Al-Bashir's arrest and surrender is sought. If the Genocide Convention is the basis for his lack of immunity before the ICC, does he still have immunity in respect of those crimes not included in the Genocide Convention? In theory, this could still represent a procedural hurdle to prosecution for those crimes, which is certainly not ideal.

The bigger picture

So how does the decision fit in with previous ICC jurisprudence concerning immunity and state cooperation, particularly the Malawi decision (2011) and the DRC decision (2014)? As noted early in the minority opinion of Judge Marc Perrin de Brichambaut, "[t]he issue of Omar Al-Bashir’s immunity has given rise to different legal positions in the jurisprudence of this Court" [para. 2]. Following the decision, Dov Jacobs observed that "we now have three pre-trial chamber decisions (therefore of same legal value) providing three different legal reasonings for the removal of Bashir’s immunity, plus, as an added bonus, a separate opinion with a fourth approach." Considering this state of affairs - and in light of the absence of any guidance from the Appeals Chamber - issues surrounding immunity involving non-party states and the legal effect of UNSC referral on such immunity may continue to give rise to some controversy.