‘South Africa is not an accused’: State (non) co-operation with the International Criminal Court and

Note: The text of this blog post has been drawn from a written submission to the third edition of the Strathmore Law Journal 2017.

In Greek mythology, Antaeus was the Libyan half-giant son of the Earth goddess, Gaea and Poseidon, the god of the sea.[1] Antaeus had the disturbing proclivity to challenge all strangers passing through his country to wrestle with him. It is quite telling that the Greek word underlying his name, Antaios, means to be set against, or to be hostile.[2] Antaeus’ occupation of wrestling strangers was geared towards the macabre end of slaying his opponents and using their skulls to build a temple to his father Poseidon. His secret superpower was that he drew strength from contact with his mother, Gaea, such that even when thrown to the ground in the midst of wrestling matches, his contact with his mother renewed his strength. In this way, Antaeus proved to be invincible. In that vein, Antaeus challenged Hercules, a demigod of sorts known for his strength, to a wrestling match.[3] In this confrontation, no matter how many times Hercules threw Antaeus off and tossed him to the ground, Antaeus would not relent and even appeared reinvigorated from the encounter with the earth.[4] When Hercules eventually realized that Gaea, the Earth and Antaeus' mother, was the source of his strength, he suspended Antaeus aloft until all of Antaeus’ power drained away, and then crushed him.

This ancient tale appears to evoke the confrontation between the International Criminal Court (ICC) and the serving President of Sudan, against whom arrest warrants were issued by the Court in 2009 and 2010 respectively. At a different level, the Court is also engaged in different legal skirmishes with state parties, and at this particular point in time, the Republic of South Africa, in connection to the arrest warrants issued by the Court for the President of Sudan. Briefly, between 13 and 15 June 2015, President Bashir was present on the territory of South Africa for purposes of attending the 25th African Union Extraordinary Summit. Despite judgments from both the ICC upholding the obligation of South African authorities to arrest and surrender President Bashir and parallel domestic proceedings at the South African High Court in which authorities were ordered to prevent the departure of President Bashir from South African territory, President Bashir nevertheless departed from the Waterkloof military air base on 15 June 2015, even as government lawyers assured the High Court in a hearing on that date that he was still in the country. Only after his plane had safely landed in Khartoum did the selfsame lawyers then notify the High Court that he had left South Africa.[5]

This single incident sparked a diplomatic as well as judicial firestorm on both the national and international plane of colossal proportions, almost similar in magnitude and intensity to that witnessed in connection with the collapse of the Kenyan cases at the ICC and before that, the decision of the United States under the Bush Administration to repudiate its signature under the Rome Statute[6] and to conduct a ruthlessly effective campaign to undermine the fledgling Court in its early days. It must be mentioned however that the robustness of the South African judicial system in connection with the Great Escape by President Bashir is however above reproach. South Africa currently holds the curious distinction of being the only state party to have formally deposited an instrument of withdrawal from the Rome Statute with the UN Secretary-General and to subsequently revoke that same instrument following a decision of the domestic High Court that the proper procedures to withdraw South Africa from the Rome Statute were not followed. On 15 March 2016, the Supreme Court of Appeal found that South Africa failed its domestic legal obligations under the Implementation Act No. 27 of 2002[7] and international obligations in failing to arrest and surrender President Bashir of Sudan when he attended an African Union Summit meeting in Johannesburg from 13 – 15 June 2015.

This piece is intended to chart the stirring developments in South Africa and at the Hague in connection to President Bashir’s ‘Great Escape’ following the decision of the Supreme Court in March 2016. Previous submissions on the question of the failure of South African authorities to arrest President Bashir have focused on the blind spots in our understanding when we surrender to the strict legalist ideology that International Criminal Law exists in the Dworkian conception of an empire of law with states as its lieges.[8] Instead, this piece proposes to view subsequent developments in South Africa and at the Hague through the provocative analytical lens of critique. This brief proceeds on the Foucaldian definition of critique as:

“…not a matter of saying that things are not right as they are. It is a matter of pointing out on what kinds of assumptions, what kinds of familiar, unchallenged, unconsidered modes of thought the practices that we accept rest.” [9]

The focus on South African legal and extra-legal arguments in the context of non-cooperation proceedings instituted against South Africa under article 87(7) of the Rome Statute[10] at the Hague is deliberate to the extent to which they reflect a critique of the body of international criminal law and the ICC as the epitome of all the legalistic aspirations of the discipline. The critical lens is a means by which we can understand the staggering trajectory of South Africa from a model state party to the Rome Statute and enthusiastic supporter of the international criminal justice project to defender of the ICC at the onset of the tumultuous relationship between the ICC and the African Union to the current disaffected malcontent compelled to defend her perception of national[11] and continental pride and honour[12] before the ICC.

It is important to go beyond the singularly linear observation that South Africa is intransigent and in active collusion with the world’s only leader charged with the triumvirate of genocide, war crimes and crimes against humanity(which, it is admitted, may very well be the case) However, as part of the critical project, going forward, it becomes urgent to seek to understand how South Africa came to this pass and what this tells us about the contradictory impulses, biases and expectations inbuilt into international criminal law.[13] I suspect that the current South African non-compliance conundrum at the ICC reveals underlying problems whose solutions do not lie within a better-managed adherence to existing rules and regulations.[14]

For that reason, the tale of Antaeus at the outset of this piece is used to frame the relationship between the Court and states. Antaeus’ contact with the Earth, his mother Gaea, gave him his power and made him invincible when challenging strangers. If you will, this is an advancement of the jurist Antonio Cassese’s famous simile that international criminal tribunals are ‘like giants without arms and legs,’ only that in the retelling, the ICC is a giant which derives strength from its contact and support from states.[15] It does not strain the bonds of credulity to extrapolate the Court as the giant Antaeus, concerned as it is with confronting strangers who are essentially hostis humanis generis, that cadre of criminal who violates universal norms and who operates beyond the bonds that hold the international society together and is thus an enemy of mankind.[16] I use the tale of Antaeus to incite deeper and more reflective thought on the logical conclusion of the fact of the ICC’s dependence on states and what this bodes for important aspects of the Court’s work going forward. Antaeus was vanquished only when he lost contact with the earth. The loss of strength that happened when Hercules discovered the source of his power exposed him to reality, and has been extrapolated to mean ‘skin in the game,’ in the sense of having exposure to the real world or to contact with reality and having to a pay a price for its consequences.[17]

It bears mention at this point to expressly delineate what is meant by the term ‘game’ in this piece. It might seem especially callous to refer to games in consideration of the particular crimes that form the subject matter of this piece. Here, the term ‘game’ is used as a metaphor for social interactions[18] in the particular context of the ICC and the different actors with whom it must engage.

The first part outlines the salient developments in South Africa after the pronouncement by the Supreme Court of Appeal in March 2016 that South Africa was in violation of domestic obligations for having failed to arrest and detain President Bashir. The second part then highlights the proceedings at the Hague instituted against South Africa for non-compliance with the requests to cooperate with the Court by failing to arrest President Bashir. The final part discusses the ramification of the state of affairs obtaining after the decision of the ICC Pre-Trial Chamber rendered on 6 July 2017 that while South Africa failed to comply with its obligations under the Rome Statute by not arresting and surrendering President Bashir to the Court, South Africa would nevertheless not be referred to the Assembly of State Parties or the UN Security Council for non-compliance as that would not be ‘appropriate.’[19]

Legal developments in South Africa and at the Hague after the Supreme Court of Appeal Judgment of March 2016

On 15 March 2016, the Supreme Court of Appeal of South Africa unanimously found authorities to be in breach of obligations under the Implementation Act No. 27 of 2002 by failing to arrest President Al Bashir. Even as this decision was being hailed as a ‘landmark judgment for international criminal justice,’[20] on 17 April 2016, the Minister of Justice and Constitutional Development filed an application to the Constitutional Court for leave to appeal the March 2016 decision of the Supreme Court and for the judgments of the Supreme Court and the High Court to be set aside. The application for leave to appeal the contested judgment was accordingly filed and set down for hearing on 22 November 2016.[21] By all accounts therefore, any resistance to the adverse findings made against the SA authorities was to be channelled through the courts.

That is why the decision by the South African Cabinet on 19 October 2016 to withdraw South Africa by executive decision from the Rome Statute landed with the impact of a blietzkrieg on a shocked South African and global audience, more so the international community; even the then UN Secretary General was reportedly shocked by South Africa’s decision to withdraw.[22] In the actual notification of withdrawal titled ‘Instrument of Withdrawal’ that was submitted to the UN Secretary-General and signed by the Minister for International Relations and Cooperation, Mr. Maite Mkoana Mashabane, South Africa stated its belief that in sensitive situations, peace and justice may be viewed as complementary but not mutually exclusive and that its obligations with respect to peaceful resolution of conflicts are incompatible with the interpretation given by the ICC of obligations contained in the Statute. Apparently, on 19 October 2016, the Cabinet met and decided to withdraw South Africa from the Rome Statute.

On 21 October 2016, the Minister for Justice and Constitutional Development, Mr. Michael Masutha, called a media conference for a briefing on the withdrawal of South Africa from the ICC and sought to explain that the withdrawal was decided in a meeting by the Cabinet on 19 October 2016 and that it was precipitated by the finding of the Supreme Court of Appeal in March 2016 that under customary international law, heads of state enjoy immunity against arrest. Under this understanding, because South Africa was party to the Rome Statute, South Africa had waived the immunity of such heads of state. In essence, to remove the legal impediment to hosting future heads of state, South Africa determined to withdraw from the ICC and to repeal domestic legislation implementing the Rome Statute in South Africa. The Minister then explained that written notice to withdraw had been submitted to the Secretary–General of the United Nations according to the terms of the Rome Statute under article 127(1) thereof.[23] Mr. Masutha further noted that the State would withdraw the domestic application it filed to appeal the contested March 2016 decision of the Supreme Court of Appeal. On the same date, Mr. Masutha addressed the Speaker of the National Assembly in South Africa, inter alia, in writing, advising on cabinet’s decision to withdraw South Africa from the ICC and stating the intention to table a bill in Parliament that would repeal the Implementation Act.[24]

Thereafter, on 24 October 2016, the Democratic Alliance (DA), a South African political party and largest minority party in Parliament serving as official opposition to the governing African National Congress (ANC), filed an application for direct access to the Constitutional Court seeking to challenge the decision of the executive to withdraw South Africa from the ICC and to submit a notification on the same to the UN Secretary–General. The same party simultaneously filed an application before the High Court of South Africa in Gauteng in the event that the Constitutional Court declined to grant it direct access to hear the petition. As it happened, the Constitutional Court declined to grant the DA direct access to it and the matter therefore fell for determination by the High Court. It is quite striking to note that the challenger-in-chief of the Government’s decision to withdraw from the ICC was the main opposition party in South Africa as supported by four non-government civil service organizations.[25]

Subsequently, on 25 October 2016, the then UN Secretary-General gave formal communication of the deposit of South Africa’s notification of withdrawal from the Rome Statute. The notification was accompanied by a declaratory statement wherein South Africa stated its commitment to the protection of human rights and the fight against impunity and recalled the significant role it played in the negotiation on the ICC and the domestic implementation of the Rome Statute as a reaffirmation of South Africa’s commitment to a system of international justice. In the statement, South Africa went on to state its pride at being a member of the African Union and made the following astonishing assertions:

South Africa does not view the ICC in isolation but as an important element in a new system of international law and governance and in the context of the need for the fundamental reform of the system of global governance. Questions on the credibility of the ICC will persist so long as three of the five permanent members of the Security Council are not state parties to the Statute. The Security Council has also not played its part in terms of Article 16 of the Rome Statute where the involvement of the ICC will post a threat to peace and security on the African continent. There are also perceptions of inequality and unfairness in the practice of the ICC that do not only emanate from the Court’s relationship with the Security Council, but also by the perceived focus of the ICC on African states, notwithstanding clear evidence of violations by others.

South Africa, from its own experience has always expressed the view that to keep peace, one must first make peace…

In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive. The reality is that in an imperfect world we cannot apply international law in an idealistic view that strives for justice and accountability and thus competing with the immediate objectives of peace, security and stability ...[Emphasis added]

On 3 November 2016, the Acting Minister of Department of International Relations and Cooperation in South Africa tabled the Instrument of Withdrawal from the Rome Statute and the declaratory statement for approval by Parliament with the Speaker of the National Assembly. On the same date, a Bill to repeal the Implementation Act of 2002 was tabled before the National Assembly.[26]

Meanwhile, back at the Hague, on 21 November 2016, the South African Embassy transmitted a note verbale to the Secretariat of the Assembly of State Parties. This note contained South Africa’s understanding and argument that the ICC had failed to address South Africa’s request for consultations with regard to the legal impediments faced by the government in implementing the ICC’s request to arrest and surrender President Bashir while he was on South African territory in 2015. By the same note, South Africa sought the Court’s guidance on the rules and procedures governing the submission of its views and observations in terms of article 87(7) proceedings under the Rome Statute. It bears noting that the terms of article 87(7) of the Statute provide as follows:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

It is unclear why South Africa submitted the above information to the Secretariat of the Assembly of State Parties (ASP) rather than directly to the Court but in any event, on 30 November 2016, the Registry of the ICC transmitted the note verbale to the Court.[27]

On 5 and 6 December 2016, a full bench at the North Gauteng High Court sat to hear the challenge by the DA political party to the constitutionality of the decision to withdraw South Africa from the ICC. It is crucial to note that the question framed for determination by the Court was primarily procedural, namely, whether the Executive’s power to conclude international treaties also included the power to unilaterally give notice of withdrawal from international treaties, in this case the Rome Statute, without any parliamentary approval.[28] The contention was that the Executive breached separation of powers and acted unconstitutionally by deciding and giving notice of withdrawal in the manner that it had.[29]

Two days after the oral hearings at the North Gauteng High Court, on 8 December 2016, the ICC Pre-Trial Chamber at the Hague issued a decision convening a public hearing for both South Africa and the ICC Prosecutor on 7 April 2017 to be heard on whether South Africa failed to comply with its obligations under the Statute by not arresting and surrendering President Bashir. [30] The secondary ground for the hearing was whether in the circumstances of such a failure, a formal finding of non-compliance should be made against South Africa and the matter referred to the ASP and the UN Security Council. The Chamber also permitted all interested States to provide relevant written submissions if they so wished.[31] The same decision also dashed South Africa’s ruminations on the possibility of an appeal against the ICC decision of 13 June 2015 (date when President Bashir landed on South African soil) when the Pre-Trial Chamber stated that such an appeal was statutorily time barred.

Following the convocation of the article 87(7) hearing on 7 April 2017 at the Hague, on 22 February 2017, the North Gauteng High Court rendered its judgment on the case challenging the constitutionality of South Africa’s withdrawal from the ICC. The decision, while not focused on the actual substance of the decision to withdraw from the Rome Statute, established that the notice of South Africa’s withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and invalid. By extension, the unilateral cabinet decision to deliver the notice of withdrawal to the UN Secretary-General was unconstitutional and invalid. As a result, South African authorities were ordered to revoke the notice of withdrawal.[32] Accordingly, on 7 March 2017, South Africa formally withdrew the notification of withdrawal from the Rome Statute.[33] The stage was thus finally set for the confrontation between the Court and South Africa, scheduled for 7 April 2017.

I now turn to the essence of the written submissions filed by South Africa to the ICC on 17 March 2017.[34] While South Africa was not beyond making completely legalistic arguments, it is intriguing to note the amount of extra-legal arguments submitted within a space normally considered to be sterile of any critique. After providing the factual basis for its arguments, South Africa canvassed the contextual basis of its submissions, arguing that the matter of whether South Africa failed in its obligations under the Rome Statute should be considered against its commitment to international peace and security. After the reminder of the role played by South Africa in the establishment of the ICC, South Africa expressed her belief with regard to involvement in international peace keeping missions in Africa that to keep peace, one must first make peace.[35] South Africa relied on the non-compliance witnessed in the case of Chad, Malawi, Democratic Republic of Congo, Djibouti, Nigeria and Uganda with respect to the arrest warrants for President Bashir to make a case for the complexities of hosting international meetings by states and international organizations. South Africa also asserted under this head that international criminal courts and tribunals are created for a specific purpose and have to operate within the cultural, political and diplomatic realities that confront them when dealing with particular issues and that the Court risks undermining its effectiveness if it fails to recognise the contextual realities of each case.[36][Emphasis added] This argument is the closest approximation to the observation made by the political theorist, Judith Shklar, that the place of justice is not above the political world, but in its very midst.[37]

As regards the non-compliance proceedings of which South Africa was now the subject, the counter argument was that customary international law immunities operate between states and that South Africa still bears the obligation to respect Head of State immunities. South Africa submitted that there was nothing in the text of resolution 1593 of 2005 or in the circumstances following the passing of that resolution to warrant the conclusion that immunities had been impliedly waived. In distinguishing previous instances in which the ICC held that the Security Council had implicitly waived the immunities of President Bashir, South Africa argued that it is doubtful whether the Security Council had the authority to waive the immunities of Heads of State when the Security Council has since the referral mysteriously demurred to clarify the matter, even after receiving biannual reports from the ICC Prosecutor dating back to the when this matter always comes up. The most powerful argument marshalled by South Africa to dispute the implicit waiver of immunities argument is the one arguing that ‘the UNSC refers situations, not individuals.’[38] The close of written submissions was marked by South Africa’s averment that she was obliged to respect the Head of state immunities of President Bashir and that he could not be arrested on South African territory without the Court first obtaining an express waiver to do so from Sudanese authorities. It is striking in the extreme to note South Africa’s submission that because it was not possible to arrest President Bashir on South African soil without the Court first obtaining a waiver from Sudan to enable South Africa to do so, South Africa should not be held liable for Sudan’s non-compliance because ‘the dispute exists between the UNSC, the Court and Sudan; it is for these three entities to resolve their disputes amongst one another.’[39][Emphasis added]

Oral Hearings at the Hague on 7 April 2017

It is fitting for purposes of this brief to note that the United Nations had been invited in the 8 December 2016 decision of the ICC to send a representative to attend the oral hearing as well as to make written submissions for the Chamber’s consideration. The United Nations declined both invitations.[40]

South Africa’s oral arguments were presented hammer and tongs, with the Chief State Law Advisor for International Law making one of the most profound statements of the day and from which part of the title of this piece is derived, namely, ‘South Africa is not an accused.’[41] South Africa’s representative used the disparity between the two major decisions by the ICC[42] on the question of President Bashir’s immunity vis-à-vis Security Council Resolution 1593 of 2005 to dispute the Prosecutor’s submission that South Africa’s legal duty to arrest President Bashir was clear and straightforward.[43]

South Africa then analysed the provisions of resolution 1593 of 2005 in disputing the implicit waiver of immunity argument relied on by the ICC in the Democratic Republic of Congo non-compliance case (hereinafter the ‘DRC case.’)[44] South Africa argued that in reaching the decision that resolution 1593 of 2005 contained an implicit waiver of President Bashir’s immunities, the ICC eschewed all known canons of interpretation. In South Africa’s view, reaching such a decision in this manner was dangerous and risked turning the interpretation process into a process for the justification of policy preferences.[45] To illustrate this point, the South African representative for the legal arguments at the hearing, Professor Dire Tladi, argued that a person reviewing paragraph 2 of resolution 1593 of 2005 who wants to protect immunities would say it is obvious that the UN Security Council did not want to touch immunities because the Council did not mention any immunities while referring the situation in Darfur.[46] On that basis, South Africa argued that the approach taken by the ICC Chamber in the DRC case was to thrust what was essentially the responsibility of the UN Security Council for acting against non-compliance with duties on the situation in Sudan onto individual states, which was dangerous and a recipe for anarchy.[47]

South Africa then proceeded to dissect the ways in which resolution 1593 of 2005 deviates from international law, which emphasizes the point that the Security Council had other policy preferences which is discernible from the choice of language used in the resolution.[48] South Africa then disputed that being referred to the Assembly of State Parties and the UN Security Council would provide an incentive for cooperation and instead suggested that the Court could direct an unambiguous request to the UN Security Council to clarify the contents of paragraph 2 of resolution 1593 so that “we are brought into clear daylight.” If the Council responds in the affirmative as having waived President Bashir’s immunity, South Africa argued that would then force cooperation in the future. Professor Tladi then pointed out that since President Bashir’s attendance of the AU summit in South Africa in 2015, President Bashir has visited three other state parties including Jordan, a known friend of the Court, which was hosting the Arab League, much like South Africa was hosting the African Union Summit. All cases of non-cooperation with the arrest warrant for President Bashir were emphasised as legally relevant and indicative of the danger the Court was posing to itself by alienating staunch supporters of the ICC in favour of what was referred to as a ‘doubtful legal proposition in interpretation.’ A recapitulation of South Africa’s leading role as peacemaker on the continent was then made in the context of the assertion that South Africa would not disengage from the African Union or adopt a policy hostile to AU heads of state.

On 6 July 2017, the ICC Pre-Trial Chamber rendered a decision on the submissions made on the non-compliance by South Africa with the ICC request for the arrest and surrender of President Bashir. The Court found that resolution 1593 of 2005 imposed on Sudan the obligation to fully cooperate with the Court and that for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of States Parties to the Statute.[49] Sudan was therefore precluded from claiming that Omar Bashir has immunity vis-à-vis the Court, obliging Sudan to arrest and surrender him to the Court. The Court also concluded that the immunities of President Bashir do not apply as against state parties to the Rome Statute and accordingly, did not need to be waived by Sudan before state parties to the ICC could execute the ICC arrest warrants.[50] Whilst the Court eventually determined that South Africa had failed to comply with its obligations under the Rome Statute by not executing the Court’s request to arrest and surrender President Bashir, it most sensationally[51] ruled that in the circumstances of the case, a referral to the Assembly of States or the Security Council of South Africa’s compliance was not appropriate.

The ICC and state non-cooperation with the arrest warrants for President Bashir – The mountain that labours and brings forth mice?

The question of state non-cooperation with the ICC’s arrest warrants issued for President Bashir forces a confrontation between strict legalism, defined by Judith Shklar as a rule-centred approach that eschews the role of politics in any legal activity and the hard realities of a world in which power matters, as argued by David Bosco. A reductionist approach would portray this clash as one between ideology and realism. Ideally, all factors remaining constant, all states should be willing to support the Court to confront those strangers deemed to be enemies of mankind. However, within the space accorded by a pluralist international society, there are a multiplicity of actors with varied interests and concerns, who do not all adhere to the legalist model by which law is superior to all other values and where politics is a ‘dirty’ word, and where the law is constantly embattled against politics. This reductionist approach is eminently unsuitable to explain the trajectory witnessed in South African interaction with the ICC in recent times. Why would South Africa, together with Kenya, refuse American advances at the height of the Bush Administration campaign against the ICC in 2003, to sign Rome Statute article 98(2) agreements, (ironically the subject of South Africa’s non-compliance proceedings at the Hague in 2017) on the basis of a ‘stated commitment to the humanitarian objectives of the ICC and to its international obligations’? As I recall, there was an economic loss to this refusal, to the tune of USD 7.2 million in military aid. Why would there be a complete volte face in 2017, where South Africa would argue its unwillingness to disengage from the African Union or to adopt a policy that would be hostile to African Union heads of state? Why specifically would South Africa adopt such a stance in the absence of having direct skin in the game, in the sense of not having a South African national, let alone a President, being tried at the ICC?

The purpose of this brief was to review the legal and diplomatic fallout of President Bashir’s escape from an African Union Summit in June 2015 through a critical optic, one which seeks to understand the true significance underlying actuality.[52] South Africa’s arguments and position illustrate the fact that’ international criminal justice is best defined by what it cannot do, by what it is prevented from doing and by what it refuses to do.’[53] Even as the Court relied on the terms of resolution 1593 of 2005, what does not come through in its decision is the fact that this resolution is filled with, in the words of William Schabas, poisonous provisions. This resolution was passed in circumstances where the drafters were preoccupied by other policy preferences[54] and even went so far as to deviate from the express provisions of the Rome Statute[55] and of general international law. [56] Legalism however demands such an uncompromising approach to following the rules that this resolution is interpreted in absolute terms.

Several times, South Africa argued that the arrest warrants issued for Al Bashir comprised a dispute between the United Nations Security Council, the ICC and the Government of Sudan which should not implicate other bystander states. This is quite a striking submission, as South Africa is aware of the provisions of the Rome Statute under article 87(7) with regard to non-compliance proceedings and ratified the Statute with knowledge of this provision. It is easy to dismiss this submission until one recalls the frustrated musings of the ICC Pre-Trial Chamber when it stated that following 24 meetings of the Security Council after the adoption of resolution 1593 and the biannual meetings between the Council and the ICC Prosecutor, the Council has not levelled any measures against state parties that have failed to comply with their obligations to cooperate with the Court with regard to the Bashir arrest warrants. The Security Council adopted resolution 1593 as a policy instrument but has been exceedingly coy when asked to implement the referral and clarify the debates over whether the resolution waived immunity. Yet, the Rome Statute does not include any proceedings by which the Security Council can be ‘encouraged’ if at all, to follow through on its resolutions with regard to the operations of the Court. It is South Africa that stands accused of non-compliance, and yet, an entirely different entity set the cat amongst the pigeons, so to speak. International criminal justice is structured in a way that obscures reality, which in this case is that the impasse faced by the Court in arresting Al Bashir was created by the Security Council’s indifference to the Court’s plight. In arguing that it is not the accused, South Africa is in essence pointing an accusatory finger at the Security Council.

On the specific matter of the arrest warrants issued for President Bashir, I am always amazed to learn that all permanent Security Council members discouraged the ICC Prosecutor from indicting Al Bashir,[57] lending some measure of credence to South Africa’s assertion that the Council referred a situation and not individuals to the Court[58] and that the criminal justice project should not be reduced to a single individual.[59] Ironically, this is the entire point of the legalistic enterprise underlying the Court.

Amicus curiae of the Court were heard to say that South Africa has always been very clear headed about her obligations under the Rome Statute to arrest President Bashir and that in 2009, President Bashir was warned by South African authorities that if he landed in South Africa, he would be arrested.[60] That the position has changed in 2017 is evidence of the fact that in a domestic setting, international criminal law does not enter a vacuum but must interact with conducive domestic political conditions that would frame compliance strategies.[61] This was certainly the case with the predecessor international criminal tribunals and does not seem to have changed with regard to the ICC.[62] South Africa in 2017 is very different from the South Africa in 2009 that warned President Bashir that if he stepped foot on South African soil, he would be arrested and surrendered to the ICC. In the present instance, South Africa has skin in a different game, as it were, and that is the regional leadership game, and this fact comes through loud and clear in legal arguments canvassed for South Africa at the Hague. The irony is that since the non-compliance ruling of the ICC in July 2017, by which the Court declined to refer the South Africa to the Assembly of State Parties and the UN Security Council, the African National Congress insists that it will still withdraw from the ICC. The problem with rainbows is that they do not last.[63]

South Africa’s non-compliance conundrum at the Hague also shows state consent to be artificial or at the most, fluid. As Frederic Megret has observed, notions of state consent are used as the ultimate test of the legitimacy of international criminal law. However, even as states broadly condemned international crimes at the Rome Conference, we are learning from different countries and their interaction with the ICC that there is considerable distance between the general denunciation of crimes and the ‘highly connoted work of who will actually stand trial.’[64]

The Prosecutor was been heard to argue that ‘without cooperation from state parties in arrest and surrender, except in very rare cases where the suspect chooses to surrender him or herself, the Court is going to be unable to carry out its most basic function.[6] At this point, it important to revert to the tale of Antaeus, introduced at the outset. Antaeus derived his strength from contact with the ground, just as the ICC derives its strength from the cooperation granted by states. In fact I overstate the case because the ICC cannot function at all without state cooperation. The minute Antaeus lost contact with the ground, he lost his strength and was vanquished. The tussle the Court is engaged in with against President Bashir shows the Court losing at significant points and racking up an impressive number of non-compliance judgments.

The structural biases and contradictions inbuilt into the international criminal justice framework demand a clear headed assessment of the actual relationship between legalism and political realities. The tremendous value of legalism is inescapable. In the international context, does justice lead, or does it follow?[66] Whom or what does it follow? What does this mean for those on behalf of whom the law should speak, that is, victims of atrocities, in the case, in Darfur?

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[1] Gill N, ‘About the Giant Antaeus in Mythology’ (25 March 2017) < https://www.thoughtco.com/antaeus-112058> last accessed on 30 June 2017. See also, Encyclopaedia Britannica, Antaeus, Greek Mythology <https://www.britannica.com/topic/Antaeus > last accessed 30 June 2017.

All references to the tale of Antaeus are drawn from Nassim T, Skin in the Game: The Thrills and Logic of Risk-Taking, [work in progress]http://www.fooledbyrandomness.com/SITG.html last accessed 30 June 2017.

[2] See, Antaios, citing Dictionary of Greek and Roman Biography and Mythology <http://www.theoi.com/Gigante/GiganteAntaios.html> last accessed 1 July 2017.

[3] At the time of Antaeus challenging Hercules to a wrestling match, Hercules was on his way to complete one of the 12 labours set for him by Eurystheus.

[4] N Gill, ‘About the Giant Antaeus in Mythology’.

[5] Asin J, ‘The “Great Escape”: In pursuit of President Al Bashir in South Africa’ 2(1) Strathmore Law Journal 2016, 173.

[6] Bolton R, ‘International Criminal Court: Letter to UN Secretary-General Kofi Annan’ (6 May 2002) US Department of State Archive <https://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm> last accessed 30 June 2017.

[7] Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002(Implementation Act.)

[8] Asin J, ‘The Great Escape’: Pursuing President Bashir in South Africa’ 2(1) 2016 Strathmore Law Journal, 2016.

[9]Cited by Schwöbel C, ‘Introduction’ in Schwöbel C(ed) Critical approaches to international criminal law, Routledge, 2014, 1.

[10] Prosecutor v Omar Hassan Ahmad Al Bashir, Decision convening a public hearing for the purposes of a determination under article 87(7) of the Statute with respect to the Republic of South Africa, ICC-02/05-01/09 (8 December 2016) (Decision convening a public hearing)

[11] Prosecutor v Omar Hassan Ahmad Al Bashir, Transcript of hearing on 7 April 2017, ICC-02/05-01/09-T-2-ENG ET WT 07-04-2017 2/92 SZ PT. Page 11 line 18 where the South African representative states that “South Africa is not an accused. We are a sovereign state and sovereign states, as you would know, are governed by rules and procedure, and that is what we are looking for. That was not available and it is still not available.”[Emphasis added]

[12] Prosecutor v Omar Hassan Ahmad Al Bashir, Transcript of hearing on 7 April 2017, ICC-02/05-01/09-T-2-ENG ET WT 07-04-2017 2/92 SZ PT. Page 39 line 25 where the South African representative argued as follows: “For South Africa, the political and diplomatic complexities also arise because of a multiplicity of factors including the leading role of peacemaker that we play on the continent. Our commitment to peacemaking, to peacekeeping is tangible. It’s not academic. It’s not just about statements we make at the African Union or the United Nations… As a leading player in peace efforts, we cannot disengage from the African Union or adopt a policy that would suggest we are not going to host AU heads of state.”

[13] Compare, Robbinson D, ‘Inescapable Dyads: Why the International Criminal Court cannot win’ 28[2015] Leiden Journal of International Criminal Law,323,338.

[14] Mégrét F, ‘International Criminal Justice: A critical research agenda’ in Schwöbel, C, (ed), Critical approaches to International Criminal Law, Routledge,2014, 21.

[15] Cassese A, On the current trends towards criminal prosecution and punishment of breaches of international humanitarian law, 9 European International Law Journal, 1998, 13.

[16] Nouwen S, and Wouter W ‘Doing Justice to the Political: the International Criminal Court in Uganda and Sudan’ 21(4) European Journal of International Law, 2011, 942,

[17] Nassim T, Skin in the Game, preface.

The author is well aware of the provocative and controversial nature of this scholar’s work and his unapologetically incendiary rhetoric and views on a wide spectrum of issues. In the particular circumstances canvassed in this paper, while the author proceeds in a manner indebted to the named scholar’s concept of skin in the game, the author nevertheless deviates from his conception in important aspects, one being that within the context of the ICC as a global institution, while some states have more at stake than others in the sense of having the most skin in the game, solutions to the issues plaguing the Court cannot be found in isolation. Perhaps it is fitting to rely on this concept by reference to the crisis facing the ICC and to the stated intention of this brief to incite deeper reflection on this crisis outside the possibilities proffered in the letter and law of the Rome Statute. It is believed that this concept allows a fresh perspective of what is essentially an old problem with regard to the predecessor international criminal tribunals.

Compare also, Sliedregt E, ‘International Criminal Law: Over-studied and underachieving?’ 29(2016) Leiden Journal of International Law 1, where the scholar suggests that there is need for ICL scholarship to test assumptions underlying the international criminal justice system. Schwöbel C had earlier argued quite rightly that there is a difference between a critique that tests the assumptions underlying international criminal justice and a critique that is merely concerned with effectiveness and the strengthening of the existing structures. Needless to say, the critique proferred by South Africa in this brief is one challenging the assumptions underlying international criminal justice.

[18] Posner J, Overcoming Law,1995, Harvard University Press, 8

[19] Prosecutor v Omar Hassan Ahmad Al- Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir’ ICC-02/05-01/09 , 6 July 2017, page 53.

[20] Du Plessis C, ‘Al Bashir ruling a landmark judgment for international criminal justice’(Mail and Guardian, 17 March 2016)< https://mg.co.za/article/2016-03-17-al-bashir-ruling-a-landmark-judgement-for-international-criminal-justice> last accessed 30 June 2017.

[21] Department of Justice and Constitutional Affairs of the Republic of South Africa, ‘Briefing to the media by Minister Michael Masutha on the matter of International Criminal Court and Sudanese President Omar Al Bashir’ (21 October 2016) < http://www.justice.gov.za/m_statements/2016/20161021-ICC.html> last accessed 20 June 2017(Briefing to the media by Minister Michael Masutha)

[22] Tor K, ‘Africa in the dock: on ICC bias’ Critical Legal Thinking, 30 October 2016< http://criticallegalthinking.com/2016/10/30/africa-in-the-dock-icc-bias/> last accessed on 1 June 2017. See also, Killander M, ‘Withdrawal from the ICC: a sad day for South Africa and for Africa’ (The Conversation Africa, 21 October 2016)< https://theconversation.com/withdrawal-from-the-icc-a-sad-day-for-south-africa-and-africa-67489> last accessed 30 November 2016.

[23] Briefing to the media by Minister Michael Michael Masutha.

[24] Democratic Alliance v Minister of International Relations and Cooperation and 10 others(83146/2016) High Court of South Africa, 22 February 2017(High Court decision).

[25] High Court decision, paragraph 7.

[26] Government Gazette, Department of Justice and Constitutional Development, Notice 747 of 2016, Publication of Explanatory Summary of the Implementation of the International Criminal Court Act Repeal Bill, available at http://www.justice.gov.za/legislation/notices/2016/20161103-gg40403_gen747-RomeStatue.pdf last accessed 1 July 2017.

[27] Prosecutor v Omar Hassan Ahmad Al Bashir, Transmission of Information and requests for guidance by the Republic of South Africa, ICC-02/05-01/09, 30 November 2016.

[28] High Court decision, para 1.

[29] High Court decision, para 15.

[30] Prosecutor v Omar Hassan Ahmad Al Bashir, Decision convening a public hearing for purposes of a determination under article 87(7) of the Statute with respect to the Republic of South Africa, ICC-02/05-01/09, 8 December 2016, paragraphs 12-15.(Decision convening a public article 87(7) hearing).

[31] Decision convening a public article 87(7) hearing, paragraph 17.

[32] High Court decision p 2.

[33] UN, South Africa: Withdrawal of Notification of Withdrawal, Reference C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification) available at <https://www.youtube.com/watch?v=GKSRyLdjsPA> last accessed 4 July 2017.

[34] Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Government of the Republic of South Africa for the purposes of proceedings under Article 87(7) of the Rome Statute, ICC-02/05-01/09, 17 March 2017 (Submission from the Government of the Republic of South Africa).

[35] Submission from the Government of the Republic of South Africa, paragraph 19.

[36] Submission from the Government of the Republic of South Africa, paragraph 24.

[37] Shklar J, Legalism: Law, Morals and Political Trials, 1986, Harvard University Press, 122-123.

[38] Submission from Government of the Republic of South Africa, paragraph 91.

[39] Submission from Government of the Republic of South Africa, paragraph 101.

[40] Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al- Bashir, ICC-02/05-01/09, 6 Juky 2017, paragraph 23.

[41] Transcript of hearing of 7 April 2017, page 11 line18. See note 11 for full citation of the transcript.

[42] Transcript of the hearing of 7 April 2017, p 20 line 7, where the South African representative argues that the different lines of reasoning used by the ICC Chambers in the Malawi and Chad non-compliance cases as against the Democratic Republic of Congo non-compliance case were so inconsistent as to be mutually exclusive.

[43] Transcript of the hearing of 7 April 2017, p 19 line 15.

[44] Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s Arrest and Surrender to the Court, ICC-02/05-01/09-195, 9 April 2014.

[45] Transcript of the hearing of 7 April 2017, p 27 line 8.

[46] Transcript of hearing of 7 April 2017, p 27 line 10. This point underscores the different ideologies at play.

[47] South Africa was essentially reiterating its written arguments that the failure of Sudan to waive President Bashir’s immunities was a matter between Sudan and the United Nations Security Council, entailing the responsibility of Sudan for violation of that duty and the possibility of the Council to take appropriate measures in response.

[48] See, Transcript of hearing of 7 April 2017, p 33 line 11, where is argued that “…if you look at the resolution as a whole, you get a sense that jurisdiction is not to be achieved at all costs. It’s not all about jurisdiction. Its not all about judicial processes and remedies.”

[49] Prosecutor v Omar Hassan Ahmad Al- Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir’ ICC-02/05-01/09 , 6 July 2017.

[50] Decision on non-compliance by South Africa with the request for arrest and surrender of Omar Al Bashir, paragraphs 90-97.

[51] See, Southern Africa Litigation Centre, ‘News release: ICC finding on South Africa’s non-compliance falls short’ 7 July 2017 available at http://www.southernafricalitigationcentre.org/2017/07/07/news-release-icc-finding-on-south-africas-non-compliance-falls-short/ last accessed 1 August 2017.

[52] Tallgren I, ‘Who are ‘we’ in international criminal law? On critics and membership’ in Schwöbel C(ed) Critical approaches to International Criminal Law, 2014, Routledge, 80.

[53] Simpson G, ‘Linear law: The history of international criminal law’ in Schwöbel C(ed) Critical approaches to International Criminal Law, 2014, Routledge, 173.

[54] Cryer R, ‘Sudan, Resolution 1593 and International Criminal Justice’ 19(2006) Leiden Journal of International Law 195

[55] Compare UNSC Res 1593(31 March 2005) UN Doc S/RES/1593, paragraph 7 and Rome Statute, article 115.

[56] Compare UNSC Res 1593(31 March 2005) UN Doc S/RES/1593, paragraph 6.

[57] Bosco D, Rough Justice: The International Criminal Court in a world of power politics, 2014, OUP, 181.

[58] Submissions of the Government of the Republic of South Africa, paragraph 91.

[59] Transcript of the hearing of 7 April 2017, p 31 line 25.

[60] Prosecutor v Omar Hassan Ahmad Al Bashir, Amicus curiae observations by the Southern Africa Litigation Centre(SALC) submitted pursuant to Rule 103(1) of the Rules of Procedure and Evidence, ICC-02/05-01/09, 10 March 2017.

[61] Subotic J, ‘The Paradox of International Justice Compliance’ (2009) 1 International Journal of Transitional Justice 1, 7

[62] Peskin V and Boduszynski M, ‘The rise and fall of the ICC in Libya and the politics of international surrogate enforcership’ (2016) International Journal of Transitional Justice

[63] Phrase attributable to James Nyawo, Email from Nyawo James on 31 October 2016.

[64] Mégrét F, a critical research agenda, 26.

[65]Transcript of hearing of 7 April 2017, p 43 line 23.

[66] Snyder J and Vinjamuri L, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’ (2003) 28 International Security 5, 6.