THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS v THE SOUTHERN AFRICA LITIGATION CENTRE AND OTHERS

THE FACTS

The International Criminal Court (ICC) issued two warrants for the arrest of President Al Bashir of the Republic of Sudan for alleged war crimes, crimes against humanity and genocide. The arrest warrants, together with a request for cooperation in the arrest of President Al Bashir, had been forwarded to all State Parties to the Rome Statute of the International Criminal Court, including South Africa. On June 14 - 15 June 2015, when President Al Bashir visited the Republic of South Africa for the 25th Ordinary Session of the African Union (AU), South Africa, as a Party to the Rome Statute, was under international obligation to arrest and surrender President Al Bashir to the ICC. However, the South African Government reneged on this obligation, citing at first, a hosting agreement that it had entered into with the AU, which granted AU delegates privileges and immunities set out in the General Convention on the Privileges and Immunities of the AU, and a subsequent ministerial proclamation which recognized the hosting agreement, as rendering President Al Bashir immune from arrest during the AU Ordinary Session. When the matter went on appeal to the Supreme Court of Appeal (SCA), government maintained that section 4(1) of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA) and customary international law gave President Al Bashir immunity from arrest. Section 4(1) of DIPA reads:

‘(1) A head of state is immune from the criminal and civil jurisdiction of the Courts of the Republic, and enjoys such privileges as—

(a) heads of state enjoy in accordance with the rules of customary international law …’

ISSUES FOR DETERMINATION

A number of issues fell to be determined by the SCA, but the following were particularly central to resolving the suit:

• Whether the hosting agreement and the ministerial proclamation gave President Al Bashir immunity from arrest.
• Whether President Al Bashir was entitled to immunity from arrest and surrender by virtue of customary international law and S. 4(1) of DIPA
• If President Al Bashir was entitled to such immunity, whether the Implementation Act that domesticated the Rome Statute in South Africa removed the immunity

THE LAW AND IHOW IT APPLIES

Issue I

Government argued that as long as the Ministerial Proclamation was not set aside by a competent court, it gave President Al Bashir immunity from arrest and surrender. The High Court had held on this issue that the hosting agreement conferred privileges and immunities on members and Staff of the AU, on delegates and other representatives of Inter-Governmental Organizations, rather than on AU member States’ heads or representatives.Section 5(3) of DIPA, which formed the basis of the Minister’s proclamation, only empowered the Minister to confer immunity on organizations that have been recognized by the Minister and on the staff of such organizations to enjoy privileges and immunities provided for in an agreement with the organization.

Affirming the High Court’s decision, the SCA held that section 5(3) deals with privileges and immunities for the AU, its representatives and officials, and with organizations with which the AU has relationships. The special arrangement in question was one between the AU and the hosting nation. It did not confer privileges and immunities on Heads or representatives of States. Any special arrangements to confer immunity on Heads of States or State delegations may only be concluded under section 7 of DIPA.Otherwise, they may only enjoy immunity under customary international law and section 4(1) of DIPA.

Government contended that the immunities conferring provision was promulgated in the hosting agreement with the purpose of giving President Al Bashir immunity, and that even if the Minister had exceeded her powers when making a proclamation to that effect, the proclamation remained in force until set aside by a court. The SCA rejected this argument, and ruled that the hosting agreement did not cover President Al Bashir. It was irrelevant that the Minister was mistaken.The agreement was essentially between the AU and South Africa with respect to the ‘material and technical organization’ of meetings of the AU, and without reference to heads of states. The AU acted in its own behalf, not as a representative of the Heads of States or member States or their delegations.An agreement that gives immunity to the Head of State of a member State and its delegates would have had to be concluded in the course of diplomatic relations between that State and South Africa.

The conclusion that follows is that the hosting agreement on which government relied did not confer immunity on President Al Bashir.The High Court was correct to have reached this conclusion

Issue 2

Government argued that it is a well-established principle of customary international law that heads of state enjoy immunity and were not subject to the criminal and civil jurisdiction of courts of foreign States, or any form of restraint. This principle, as embodied in section 4(1) (a) of DIPA, constituted a limitation on the universal jurisdiction of the ICC. As such, President Al Bashir enjoyed immunity from being arrested and surrendered to the ICC pursuant to the latter’s arrest warrants.South Africa’s International Criminal Court Act 27 of 2002 (Implementation Act) did not remove this immunity. It only precludes immunity from being advanced as a defence or in mitigation of sentence in a prosecution before a South African Court.

The applicant countered that the Implementation Act was intended to give effect to South Africa’s membership of the Rome Statute and the obligations arising therein, including the obligation to cooperate in the execution of ICC arrest warrants. On account of sections 4(2) and 10(9) of the Act, no one may rely on immunity as a defence to prosecution or to resist arrest.

Alternatively, the applicant argued that the Government of South Africa has a constitutional obligation to ensure that persons accused of international crimes are arrested, detained and brought before an appropriate tribunal. This duty is reinforced by section 232 of the 1996 Constitution of South Africa which affirms customary international law as law in South Africa, unless it is inconsistent with the Constitution or Act of Parliament. The reference to customary international law in section 4(1) (a) of DIPA must be read consistently with South Africa’s treaty obligation under Implementation Act and with constitutional obligations. As such, the immunity conferred under DIPA must be read in a way that is consistent with the absence of immunity for international crimes under the Rome Statute. That would mean that international crimes are an exception to the general principles of customary international law that afforded heads of states immunity from arrest or prosecution while visiting a foreign state.As such, President Al Bashir did not enjoy the immunity claimed.

In the SCA’s view, the relationship between the Act, the immunity of heads of state under customary international law and DIPA lies at the heart of resolving this case. However, the starting point must be the South African Constitution, which makes customary international law part of the law of South Africa, subject to national legislation.When interpreting legislation, South African courts are under constitutional obligation to interpret it consistently with international law. South African case law clearly articulates South Africa’s obligation to comply with international law (National Commissioner of Police v Southern Africa Human Rights Litigation Centre 2015 (1) SA 315 (CC)) and supports the applicant’s contention that South Africa was under obligation to effect the arrest of President Al Bashir.

How then is this obligation defined under international law and South African legislation? Looking at Articles 1 and 2 of the Rome Statute, the SCA found that the jurisdiction of the ICC ordinarily extends to all State Parties and non-party States who accept the jurisdiction of the Court.It follows that the ICC’s jurisdiction ordinarily does not extend to non-party States.Sudan, being a non-State Party to the Rome Statute, is not bound by it or subject to the ICC’s jurisdiction. However, Article 13 (b) of the Rome Statute allows the ICC to assume jurisdiction over a non-party State if the United Nation’s Security Council, acting under Chapter VII of the United Nation’s Charter, refers a matter involving such non-party State to the ICC. Hence, the court’s universal jurisdiction. The Security Council did refer the alleged violations in Darfur, Sudan to the Prosecutor of the ICC, thereby conferring jurisdiction on the ICC to act. UN member States are obliged to recognise the authority of the decision of the Security Council to refer the Darfur situation to the ICC, and, as required by Part 9 and Article 89 of the Rome Statute, to cooperate and render judicial assistance to the ICC in the performance of its tasks, including to cooperate in securing the arrest and surrender of persons who have been indicted by the ICC.

Having regard to the contention that international crimes are an exception to the customary international law principle that heads of states enjoy immunity from the jurisdiction of foreign courts, the SCA held, having regard also to the present state of the development of customary international law, and relying on the jurisprudence of the International Court of Justice, that it was unable to hold that international crimes constitute an exception to the immunity principle. In its view, Article 27 of the Rome Statutes pre-empted the defence of immunity under customary international law being raised by state actors by providing that the Statute will apply equally to all persons regardless of status.Thus, no one, including a head of state, will be immune from prosecution. States that bind themselves to the Rome Statute accordingly waive the immunity their nationals would otherwise enjoy under customary international law.

Issue 3

South Africa was bound by the Rome Statute to cooperate with the ICC and render assistance in the arrest and surrender of persons with respect to whom the ICC has issued arrest warrants and requested for assistance. It was to facilitate this obligation that the Implementation Act was passed.In construing the Act, the court must refrain from an interpretation that is inconsistent with South Africa’s obligations to the Rome Statute and its own Bill of Rights. It also observed that the crimes of which President Al Bashir was indicted were violations of human rights under South Africa’s Bill of Rights, and that acknowledging this context was relevant the court’s obligation to the interpret the Implementation Act in a manner that was consistent with the ‘spirit, purport and object’ of the Bill of Rights.

Elements of the Act warrant stressing because they show that its purpose is to provide a framework to ensure the effective implementation of the Act, and that South Africa conforms to its obligations under the Rome Statute. It is without doubt that the Act obligated South Africa to bring President Al Bashir before the ICC for trial or to try him before a domestic court. However, the Act (in sections 8 & 10) also makes it an obligation for South Africa to comply with a request by the ICC for Assistance. It is consistent with these obligations that section 4(2) of the Implementation Act precludes a head of state or government, or other high ranking state official from citing immunity as a defence or even as a reason for sentence reduction.

By enacting the Implementation Act, South Africa demonstrated its commitment to fulfilling its obligations to the Rome Statute. This meant that no one, including a head of state may claim immunity as a bar to arrest and prosecution for international crimes. It also meant that South Africa was under obligation to prosecute him, or cooperate with the ICC in the arrest and surrender of President Al Bashir, having received an ICC request for assistance in that regard. South Africa defaulted on its obligations.