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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

aaacosta09
4988
November 15, 2016
12:25 pm

Regaining South Africa’s Support in the ICC by Resolving the Head of State Immunity Issue

In order to prevent a mass exodus of African states parties resulting in the dissolution of the Court, the ICC should take swift action to regain South Africa’s support in the ICC by resolving the head of state immunity issue.

Introduction

On October 21, 2016, South Africa announced it would be withdrawing from the ICC, citing an irreconcilable conflict between its obligation to arrest under the Rome Statute and its duty to honor head of state immunity under customary international law.1 While the recent withdrawal announcements of Burundi and Gambia can be understood as opportunistic moves to avoid criminal responsibility, South Africa’s departure raises far more serious concerns for the future existence of the Court. Specifically, South Africa’s withdrawal is likely to trigger a mass exodus of African states from the Rome Statute, thereby seriously undermining the ICC’s legitimacy and credibility and sentencing the Court to an almost certain end.

In order to abate the escalating crisis, it is crucial that South Africa’s faith in the Court is renewed. This article argues that the most effective way to quickly restore South Africa’s support for the Court is for the Court to resolve the discrepancy between Article 27 and Article 98 of the Rome Statute,2 effectively allowing states parties to the Rome Statute to honor head of state immunity while still complying with the Statute. Besides reviving South Africa’s endorsement of the Rome Statute, this action would foreseeably renew other African countries’ faith in the Court, namely countries like Kenya and Sudan who have been subjected to the head of state immunity dilemma. Lastly, it is important to mention that this proposal is not intended to address the ongoing problems the Court continues to have with legitimacy, but rather, it is meant to suggest a prompt course of action to stave off the impending dissolution of the Court.

Background

In June of 2015, South Africa hosted the 25th annual African Union Summit. While South Africa faced international, domestic, and ICC pressure to arrest Sudanese President Al Bashir, who has been indicted by the ICC, in the end, South Africa decided to honor Al Bashir’s head of state immunity under customary international law. The decision to not arrest Al Bashir led to a wave of harsh criticism, which eventually resulted in the government of South Africa being sued in its own Supreme Court of Appeal.3 In addition to the litigation and political fallout, Minister of Justice and Correctional Services Michael Masutha stated the failure of the ICC to resolve South Africa’s pre-AU summit request to “clarify the apparent contradiction” of the head of state immunity dilemma as yet another factor in its decision to withdraw.4

Article 27 of the Rome Statute states “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”5 Conversely, Article 98 says 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…”6 On its face, it is this apparent contradiction which has prompted South Africa to pull out of the ICC.

Proposal

In order to resolve this apparent discrepancy between the Rome Statute and customary international law, the Court can and should persuade South Africa to stop its withdrawal by either 1.) clarifying the head of state immunity problem or by 2.) amending the Rome Statute to allow for a head of state immunity exception. Although either course of action would require a great deal of obstacles and may lead to the Court being criticized as political, this resolution is necessary to garner again South Africa’s support, thus dissuading other African states parties from withdrawing. This showing of good will can hopefully bring an end to the impending crisis.

Interpreting the Rome Statute as being internally consistent, it can be argued that there is no contradiction between Article 27 and Article 98 of the Rome Statute. One feasible interpretation is that although the Rome Statute attaches criminal responsibility to all persons—even heads of state—the Statute prohibits the Court from compelling a state party to arrest an indictee if by doing so, the state would be forced to break customary international law with regard to head of state immunity. This particular interpretation would allow countries like South Africa to abide by the mandates of the Rome Statute, while still allowing them to honor head of state immunity.

Of course, this interpretation of Articles 27 and 98 is not without obstacles. Indeed, the Court has explicitly rejected this interpretation on prior occasions. In the 2011 Malawi noncooperation decision, the Pre-Trial Chambers decided that “customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes.”7 This finding was subsequently reiterated the following day in the Chad noncooperation decision.8 If the Court determines that the best course of action is an interpretation of Articles 27 and 98 which recognizes head of state immunity, it should sua sponte renounce its Pre-Trial Malawi and Chad decisions. In addition, the Court should submit an official statement delineating the new interpretation of Articles 27 and 98 that recognizes a state party’s prerogative to honor head of state immunity.

Should the ICC be constrained in its ability to define a new interpretation of Articles 27 and 98, the Assembly of States Parties should move to enact an amendment pursuant to Article 121 which would allow states parties to honor head of state immunity despite an indictment by the Court. With the upcoming Fifteenth Session of the Assembly of States Parties on November 16, 2016, states parties should be thinking of ways to amend the Statute to allow for a head of state immunity exception. This amendment would likely, in turn, bring South Africa back into supporting the Court and send a loud and clear message to African countries that their voices have been heard and their continued support is needed and desired.

Aside from assuaging the South African concerns about the Court’s inability to resolve its dilemma, a head of state immunity exception to the Rome Statute would also have other ancillary effects, namely restoring faith in the Court from African states that have had similar hesitations regarding the head of state immunity discrepancy—countries such as Kenya and Sudan.

On the other hand, by recognizing a head of state immunity exception, the ICC might be criticized as undermining its specific mandate “to put an end to impunity for the perpetrators of these crimes.”9 Under this new interpretation or amendment to the Rome Statute, states parties would not be required to arrest indicted heads of state, thus decreasing the chances for arrest and prosecution. The ICC would likely have to wait out the head of state’s incumbency before an arrest could be effectuated; if the head of state were to die in office, there likely would be no chance to prosecute. Effectively granting immunity to those most responsible for these atrocities would seem at odds with the goals of the Court. These are difficult realities to consider, but in the end, the ICC may have to take action that would shield heads of state from arrest, if by doing so, the Court would continue to live on.

Conclusion

To prevent the mass exodus of African states parties and ensure the continued existence of the ICC, it is imperative for the Court to take swift action to win back the support of South Africa. Specifically, the Court would likely succeed in this project by recognizing a head of state immunity exception, either by clarifying the interpretation of Article 27 and Article 98 or by amending the Rome Statute. While regaining South Africa’s support is crucial to obviate an imminent dissolution of the ICC, much more still needs to be done in the future for the ICC to overcome its perception as a biased, neocolonialist court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See Michael Masutha, South African Minister of Justice and Correctional Services, Briefing to the media on the matter of the International Criminal Court and Sudanese President Omar Al Bashir (Oct. 21, 2016), available online. ↩
2.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], at Articles 27(1), 98. ↩
3.
See The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15) [2016] ZASCA 17 (Mar. 15, 2016), available online. ↩
4.
See Press Conference, Michael Masutha, South African Minister of Justice and Correctional Services, Briefing on South Africa’s Withdrawal from the ICC, YouTube (Oct. 21, 2016), available online. ↩
5.
Rome Statute, Article 27(1)

(“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute”). ↩
6.
Rome Statute, Article 98(1)

(“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”). ↩
7.
The Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Pre-Trial Chamber I, Dec. 12, 2011), available online. ↩
8.
See The Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, at ¶ 14 (Pre-Trial Chamber I, Dec. 13, 2011), available online. ↩
9.
Rome Statute, Preamble ↩

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