Bashir-ICC impasse: South Africa must err on side of caution
June 14, 2015, 3:59 pm

By hosting Sudan’s President this weekend for the African Union Summit, South Africa faces a conundrum, very akin to the one faced by fellow African nation, Nigeria when it received the controversial leader in 2013.

Nigeria had declined to arrest the leader while other states who did the same were non-ICC signatories like Egypt and Saudi Arabia.

On July 17, 1998, the United Nations General Assembly adopted the Rome Statute of the International Criminal Court by a vote of 120 to 7, with 21 countries abstaining.

The seven countries which voted against the treaty included the United States, China, Iraq, Israel, Qatar, Libya, and Yemen.

The irony here is that two of the countries which voted against the Rome Statute are two permanent members of the United Nations Security Council who, through the statute now may refer matters to the International Criminal Court that they do not recognize.

The ICC has called on South Africa to arrest Sudanese President Omar al-Bashir who is in the country to attend an AU Summit. Bashir is accused by the ICC of war crimes and crimes against humanity related to the conflict in Darfur.

Al Bashir has blood on his hands, lest we forget.

South Africa, however, has clear laws that grant immunity to visiting heads of states.

In accordance with the Diplomatic Immunities and Privileges Amendment Act 35 of 2008, South African Foreign Minister Maite Nkoana-Mashabane published a public notice which further granted immunity to all diplomats and heads of state attending the current 25^th African Union Summit in Johannesburg, which ends on June 15.

The Act is clear enough – Sudanese President Omar al-Bashir cannot be arrested whilst in South Africa.

In what could now be interpreted as a curtain raiser to the current fracas, South African President Jacob Zuma, during a Special African Union Summit in October 2013, referred to prevalent perceptions, at least in Africa, that the ICC is “unreasonable”.

Sudanese President Omar al-Bashir gestures during the photocall before the opening of the 25th African Union (AU) Summit at Sandton Convention Center in Johannesburg, South Africa, on June 14, 2015. Sudanese President Omar al-Bashir attends the 25th AU Summit here despite the International Criminal Court’s arrest warrants [Xinhua]

In November 2013, the ICC agreed to consider amendments to the Rome Statute following a Kenya-sponsored AU call for an exemption for sitting heads of state.

Sudan’s President Al-Bashir visited, Chad, Denmark, Uganda, Turkey, Egypt and Kenya despite an outstanding ICC warrant for his arrest; these countries did not execute the warrant.

The AU is not alone in leveling charges of racism and flawed proceedings against the International Criminal Court. The ICC, of which Sudan is not a signatory, has also received criticism from the Arab League.

On March 13, 2001, France’s highest court ruled that Libyan leader Colonel Muammar Gaddafi cannot be prosecuted in connection with a bomb attack on a French DC-10 airliner in 1989.

The ruling stated that International Customary Law prohibited the exercise of criminal jurisdiction over foreign heads of state in office.

Furthermore, functional immunity or official acts immunity are instruments for diplomatic exercise as described in the Vienna Convention of 1961.

South Africa’s Diplomatic Immunities and Privileges Amendment Act 35 of 2008 protects heads of state in a similar fashion to the protections afforded career diplomats.

Functional Immunity and Personal Immunity compels the receiving state to protect the head of State without exception. This must be preserved especially if such a head of state is traveling for peace talks and other diplomatic functions within the territory of the host state.

South Africa has the right to refuse the visit by a head of state sought for international crimes but cannot entrap or accept the head of state and then arrest him whilst on diplomatic duty.

A Belgian Court in the matter of a Congolese Minister, who had a warrant of arrest issued against him by the ICC, ruled that the Minister cannot be arrested whilst traveling inside the host country but left open the option of arrest in between travel.

International criminal law is yet to be settled on whether functional or personal immunity applies to heads of state wanted for serious crimes like ‘genocide’.

For now, personal immunity for a head of state from prosecution or arrest remains in place for visits to foreign lands.

South Africa, having accepted al-Bashir’s visit for official duty, cannot go ahead with his arrest.

The imperative to maintain global order requires that the judiciary be circumspect on jurisdictional matters. The High Court in South Africa should decline jurisdiction on the matter.

If the judge rules in favour of the applicants to have al-Bashir arrested, the damage to world order will be immense.

South Africa could be accused in the continent of having known and staged an entrapment. The immunity granted by South African Foreign Minister Nkoana-Mashabane is a valid defense.

For building a strong democracy, South Africa’s constitution must trump international treaties.

At the same time, the judiciary must strike a balance in ensuring South Africa adheres to its international obligations.

Now is Pretoria’s chance to display some deft diplomacy or it might affect South Africa’s future pitches to host international diplomatic events.

A South African judge has already ordered the ‘temporary detention’ of the Sudanese President. This can be interpreted by many as violating domestic law.

The ICC has offered South Africa a Hobson’s Choice and Pretoria would be well-advised to err on the side of caution.

The last word on this is yet to be spoken.