Legal considerations in the Al Bashir case

Conclusion and lessons

The complaint about the ICC’s affection for African cases is accordingly a
complaint that appears to be overblown. It is worth concluding on this point by
noting that the South African government’s legal opinion (appended after the
media briefing given by Ntsaluba on 31 July 2009) indicates that the government
is aware that the true facts are that the court is seized with African cases because
of African state referrals and in the interests of African victims.

While the opinion records that ‘[t] here has been an outcry by some analysts
and leaders from the Continent that the ICC seem (sic) to be focusing only
on Africa, as the four cases currently before the Court are African cases’ it
continues that ‘it should be noted that while this argument is true, three of
the four cases were self-referral (sic), only the Sudan case was referred to (sic)
by the UNSC’. The opinion further notes (without necessary approval) that
‘some analysts argue that the focus on Africa should be celebrated rather than
criticised as the ICC was created in order for the perpetrators of worst atrocities,
regardless of rank and status, would be brought to account (sic)’.

Indeed, that point has been made by amongst others Desmond Tutu and Kofi
Annan, two of Africa’s most highly respected sons.110 And when one considers
that African states make up the largest regional bloc of nations that have ratified
the Rome Statute then statistically it is acceptable (if not probable) that more
cases will come from the African continent.

45


...

CLAIM 2: THE ICC IS THWARTING AFRICAN EFFORTS
TO DEAL WITH ATROCITIES ON THE CONTINENT

The suggestion that the ICC’s work in Africa is undermining rather than
assisting African efforts to solve the continent’s problems is a complaint
vocalised by the AU. In this regard the Sudan referral is an illustrative example.
As mentioned earlier, while there have been a variety of criticisms of the court
in relation to each of the four situations it is investigating, matters have come to
a head in response to the Sudan referral. Of course, indicting a head of state is
then often unsettling for other reasons, and includes the fear and uncertainty
of an independent third party’s involvement in the complex dynamics of peace
negotiations and conflict resolution. And this in part appears to be one of the
reasons most African states are pushing for the Security Council to defer the
prosecution of al-Bashir.



50

For instance, in its press release following the 3 July 2009 decision in Sirte,
the AU explained that its decision: ‘Bears testimony to the glaring reality that
the situation in Darfur is too serious and complex an issue to be resolved
without recourse to an harmonized approach to justice and peace, neither of
which should be pursued at the expense of the other’.118 Accordingly, continues
the press release, the 3 July decision ‘should be received as a very significant
pronouncement by the supreme AU decision-making body and a balanced
expression of willingness to promote both peace and justice in Darfour (sic) and
in The Sudan as a whole’ and ‘t is now incumbent upon the United Nations
Security Council to seriously consider the request by the AU for the deferral
of the process initiated by the ICC, in accordance with Article 16 of the Rome
Statute’.


Earlier the press release stressed the ‘unflinching commitment of AU
member states to combating impunity and promoting democracy’, and that
the 3 July 2009 decision ‘underlines the need to empower the African Court
on Human and Peoples’ Rights to deal with serious crimes of international
concern in a manner complementary to national jurisdiction’. The suggestion
here appears to be threefold:

* There is a desire in Africa for an ICC process that presents or respects ‘an
harmonized approach to justice and peace’.

* Africa wants its calls for a Security Council deferral of the Sudan
investigation to be taken seriously, indeed acceded to.

* Hopes have been placed in an empowered African court to deal with
international crimes as a plausible alternative to the ICC (and an alternative
that might apparently deprive the ICC of its jurisdiction at least in respect of
African situations).

Each of these suggestions ultimately arises from a preference expressed by the
AU for African solutions to African problems, and in particular for African
peace efforts on the continent not to be undermined by the ICC. It is accordingly
necessary to focus in some detail on the call by the AU for the ICC and/or the
Security Council to give peace a chance.

51

...

In the first place, it may be noted that the ICC’s involvement in Sudan (or
indeed other parts of Africa) is consistent with an expressed agreement in a
variety of African documents that international crimes should not be met with
impunity. No less than the AU’s Constitutive Act (article 4(h)) stresses this
principle. And the African Commission on Human and Peoples’ Rights (the
precursor to the African Court on Human and Peoples’ Rights) has affirmed
this commitment as an African ideal. It may be said that on paper at least, the
AU’s Constitutive Act expresses a presumption in favour of prosecution for
international crimes.

Second, striving for justice in respect of these crimes is a principle that is
supported by widespread state practice on the African continent. In order to
become a party to a multilateral treaty, a state must demonstrate, through a
concrete act, its willingness to undertake the legal rights and obligations
contained in the treaty. In other words, it must express its consent to be bound
by the treaty. A state may express its consent to be bound in several ways, in
accordance with the final clauses of the relevant treaty. The most common way
is through ratification. It is not insignificant that more than half of Africa’s
states (and the largest regional grouping in the world) have ratified the Rome
Statute, thereby unequivocally expressing that they consider themselves legally
committed to the principle that there ought ordinarily to be prosecutions in
circumstances where serious crimes of concern to the international community
have been committed.

For countries that have domesticated the Rome Statute, this commitment
to a justice response in relation to international crimes goes beyond treaty
ratification and is domestically reflected national law.

52

...


On the topic of state practice it might also be recalled that the situation in Sudan
was considered serious enough for the Security Council to invoke its chapter
VII powers to refer the atrocities to the ICC for its attention. That decision by
the council was taken — in the first place — without a veto being exercised by
any of the five permanent members, and with the support of African states
who recognised the gravity of the crimes that were being committed and the
need for a justice response. In the second place, it must be recalled that before
the referral the Security Council had adopted resolution 1564 which charged
the secretary-general with establishing a commission of inquiry ‘to investigate
reports of violations of international humanitarian law and human rights law

53

in Darfur by all parties, to determine also whether or not acts of genocide have
occurred, and to identify the perpetrators of such violations with a view to
ensuring that those responsible are held accountable’.

The Darfur Commission, under the leadership of Antonio Cassese, presented
its report to the Security Council in February 2005,119 and recommended that
due to the grave crimes that had been committed in Darfur the council invoke
its chapter VII powers to refer the matter to the ICC. It should be recalled
that the commission included highly respected African and Arab members.
The African members were Therese Striggner-Scott (a barrister and principal
partner with a legal consulting firm in Accra, Ghana, and who served as judge
of the high courts of Ghana and Zimbabwe, and was the executive chairperson
of the Ghana Law Reform Commission from January 2000 to February 2004),
and Dumisa Ntsebeza (a former commissioner on the Truth and Reconciliation
Commission in South Africa, and who served as acting judge on the high court
of South Africa, as well as the South African labour court). The Arab member
was Mohammed Fayek (then secretary-general of the Arab Organisation for
Human Rights, and who previously served in Egypt as minister of information,
minister of state for foreign affairs, minister of national guidance, and chef de
cabinet and advisor to the president for African and Asian Affairs).

There is accordingly an understanding by African states that at the very least
true and lasting peace requires a commitment to justice. The two imperatives
may - and probably ought to - operate side by side.

The discussion above demonstrates that African states parties to the ICC have
already expressed their preference for a justice response to international crimes:
that is, states parties ratified the Rome Statute because of the importance they
attach to the view that there should be no impunity for international crimes;
and by becoming a party to the statute they have accepted legal duties in respect
of the prosecution of persons responsible for these crimes.

Naturally, that is not to say that prosecutions must be pursued at all costs
or without regard to other considerations such as timing or the progress of a
particular peace process. The Rome Statute itself recognises that the pursuit of
prosecutions is not an absolute or blind commitment. But at the very least the
principle in favour of prosecution — voluntarily assumed as a duty to prosecute
by states parties to the Rome Statute — should be acknowledged within Africa.
And that presumption in favour of prosecution demands that any arguments
for investigations/prosecutions to be deferred be made convincingly and backed

54

Vitally important in respect of Sudan’s conduct is that at this stage of the
proceedings, it is open to states to insist that they will investigate allegations
against their own nationals themselves: the ICC would then be obliged to
suspend its investigation.138 If the alleged perpetrator’s state investigates the
matter and then refuses to initiate a prosecution, the ICC may only proceed if it
concludes that that decision of the state not to prosecute was motivated purely
by a desire to shield the individual concerned. The thrust of the principle of
complementarity is that the system effectively creates a presumption in favour
of action at the level of states.

…


What about states — like Sudan — that are not party to the Statute? Article 17,
which sets out the complementarity regime, provides that the ICC must defer
to the investigation or prosecution of a ‘State which has jurisdiction over’ the
case. It does not talk about ‘states parties’ that have jurisdiction over the case.
The reference to a state ‘which has jurisdiction’ over a case includes non-party
states, in that a non-party state may well have jurisdiction over the case on the
basis of traditional principles of jurisdiction (territoriality, or nationality). This
is also apparent from article 18(1) which provides that all states parties, as well
as ‘those States which, taking into account the information available, would
normally exercise jurisdiction over the crimes concerned’, must be notified by
the prosecutor that he intends to initiate an investigation. It is thus clear that
Sudan has, since Security Council referral, had the ability to frustrate the ICC’s
exercise of jurisdiction by insisting that it is willing and able to prosecute the
offenders allegedly guilty of war crimes and crimes against humanity in the
Darfur region.

The ICC prosecutor, pursuant to the referral and in terms of article 53(1) of
the Rome Statute, has gathered and assessed relevant information in order to
determine whether there is a reasonable basis to initiate an investigation into
the crimes committed in Sudan. Article 53(1) enunciates three considerations
that inform his decision regarding whether or not to initiate an investigation.
These considerations relate to:

* Whether a crime has been or is being committed within the court’s
jurisdiction.

* Whether complementarity precludes admissibility.

* Whether or not the interests of justice militate against initiating an
investigation.

59

To assist with this process, the prosecutor received a list of 50 names as well
as over 2 500 evidential items from the Darfur Commission.141 The prosecutor
has indicated that he does not consider the list of names binding and may
undertake his own investigation to determine which individuals bear the

‘greatest responsibility for the crimes to be prosecuted by the Court).142 In
undertaking his preliminary analysis, the prosecutor interpreted article 53(1)
of the Rome Statute as entailing the consideration of ‘whether there could be
cases that would be admissible within the situation in Darfur’.”3 On 1 Iune
2005, after examining, inter alia, the Sudanese justice system and `traditional
systems for alternative dispute resolution’, and interviewing various interested
parties, the prosecutor decided that there were cases that are admissible in
terms of article 53(1); which is to say that the prosecutor’s office concluded that
the complementarity principle does not stand in the way of a prosecution by the
ICC of at least certain cases.

So far the ICC prosecutor has taken a proactive position as far as
complementarity is concerned. Ocampo has explained that:
The admissibility assessment is an on-going assessment that relates to
the specific cases to be prosecuted by the Court. Once investigations
have been carried out, and specific cases selected, the OTP (Office of the
Prosecutor) will assess whether or not those cases are being, or have been,
the subject of genuine national investigations or prosecutions-144

The prosecutor has been clear: ‘In making this assessment the OTP will respect
any independent and impartial proceedings that meet the standards required
by the Rome Statute’.145 To date Sudan has provided no evidence that any of its
domestic proceedings are worthy of such respect.146 Accordingly, the deferral of
the ICC’s focus on Sudan must be assessed in the following light:

* First, any suggestion that the ICC’s involvement of the ICC should be dis-
placed in favour of domestic prosecutions must take account of the fact that
Sudan has to date been both unwilling and unable to prosecute those guilty
of war crimes and crimes against humanity. Thus, it cannot plausibly be the
case that a deferral will serve the interests of justice, at least insofar as those
interests might have been secured by domestic prosecutions in Sudan.

60

* Second, it must be acknowledged that the Darfur crisis came before the ICC
for the right reason. That is because, as the Security Council recognised, the
human rights violations involved demanded an international prosecutorial
response in the interests of peace and justice. It should only be removed from
the ICC for the right reason. In the absence of compelling reasons to show
that the peace process in Sudan is a credible one and that the ICC’s focus on
Darfur will undermine that process, the ICC’s involvement remains the only
plausible means by which to secure both the interests of peace and justice.

* Third, because it is apparent that Sudan has at least since February 2005
(when the commission presented its report to the Security Council) defiantly
failed to take any meaningful steps to combat the impunity that has followed
massive and ongoing crimes in Sudan, it has manifestly failed to contribute
towards the restoration of security in the region. And it must be questionable
what commitment the government has towards peace. Given the Sudanese
government’s long-standing failure to show a worthy commitment towards
security and peace, it is difficult to understand why it should be given the
benefit of the doubt through a deferral of the ICC’s investigation.

In these circumstances any consideration of calls to suspend the ICC’s
involvement in Sudan raises the question: deferral to what? There is little
evidence of a credible peace process in Sudan and less evidence of Sudan’s
commitment to ending impunity for international crimes either by cooperating
with the ICC or domestically prosecuting offenders. A deferral of the ICC’s
focus on Sudan would at present be a deferral in favour of very little. That is not
to say that the situation might not change in Sudan, or that a good case cannot
be made out for peace over justice in other situations on the continent. It is only
to say that on the available evidence at this time there appears to be little to
upset the Rome Statute’s presumption in favour of prosecution in Sudan.

Respecting the process in making calls for peace

Having properly assessed the evidence for and against the ICC’s involvement in
any given situation, should African states or the AU remain concerned about a
prosecution or investigation by the ICC, there are mechanisms internal to the
Rome Statute which provide a means for appropriately raising those concerns.

It was pointed out above that the Rome Statute itself envisages that
investigations and prosecutions by or before the ICC may in certain

61

circumstances be deferred. The two situations that are relevant, and which
arise in respect of Sudan, flow from article 53 and article 16 of the statute.

Article 53 provides that the prosecutor may decline to initiate an
investigation or proceed with a prosecution if that would ‘serve the interests
of justice’. The question then is what would qualify as a basis for declining to
initiate an investigation ‘in the interests of justice’. The term ‘interests of justice’
is not defined in the statute. What is clear is that it is an exceptional basis on
which a decision not to investigate may be made. Indeed, the wording of article
53(1)(c) suggests that gravity and the interests of victims would tend to favour
prosecution. Consequently, the OTP has indicated that there is a presumption
in favour of prosecution where the criteria stipulated in article 53(1)(c) and
53 (2)(c) have been met.”  The OTP’s policy paper on the interests of justice
emphasises that the criteria for the exercise of the prosecutor’s discretion in
relation to this issue ‘will naturally be guided by the objects and purposes of the
Statute — namely the prevention of serious crimes of concern to the international
community through ending impunity’.

That being said, it is open to a state or the suspect to argue that the prosecutor
should reach such a decision where the individual is participating in a justice
process other than a traditional criminal prosecution. So one could imagine
the prosecutor declining to prosecute if the suspect was subject to alternative
accountability mechanisms (like for example the South African amnesty process
which provided some level of accountability or an alternative dispute resolution
mechanism like the gacaca process in Rwanda).  While such an interpretation
is certainly plausible, these are still early years before the ICC and without a
track record it is not possible to predict with any accuracy whether such an
interpretation would be adopted by the prosecutor and approved by the court.
Central to this determination would be whether the alternative mechanism
adopted by the country provides justice.

Accordingly, the first appropriate process for (African) states to claim that
investigations or prosecutions are not in the interests of justice is through
invocation of article 53 of the Rome Statute. For instance, the appeal hearings
concerning the arrest warrant for al-Bashir are one means by which the
concerns might be raised by Sudan, and other African states or even the AU.

The second way in which investigations and prosecutions by or before the
ICC maybe deferred is through article 16. Under article 16 the Security Council

62

can use its chapter VII power to stop an investigation or prosecution for a year
at a time.

No doubt there are political criticisms that might be levelled at the
Security Council being empowered to make such a decision, given its skewed
institutional make-up. That concern will be dealt with further below. For now,
it is enough to point out that the chapter VII (UN Charter) legal criteria will
in any event have to be met. It must be stressed that when the council referred
the matter to the ICC, it (on the recommendation of the independent experts
in the Darfur Commission) found that the situation in Darfur constituted a
threat to international peace and security. The same criteria will be applied
by the council in making any deferral decision; that is, there will have to have
been a fundamental change in Sudan such that the situation there no longer
constitutes a threat to international peace and security, or that continuing the
ICC process is a greater threat to peace and security that deferring.

Put differently, in respect of Sudan the question is whether deferral is
required because of the Security Council’s chapter VII duty to act in the
interests of peace and security - in other words whether not deferring could be
characterised as a threat to the peace or a breach of the peace. There are clearly
situations where the decision not to defer to, for instance, a credible domestic
peace process might affect international peace.

Thus, the second appropriate process for (African) states to call for deferral
of a prosecution is through convincing the Security Council that such a deferral
is in the interests of justice and peace.


...

63

…

CLAIM 3: THE SECURITY COUNCIL’S DOUBLE-STANDARD

Concerns about the Security Council’s skewed politics

Increasingly now in the forefront of international political discourse around the
ICC, certainly within the AU, is the fact that international criminal justice is
subject to the uneven and imbalanced landscape of global politics. For Africa,
a key concern in this regard is the relationship between the Security Council
and the ICC, specifically the council’s powers of referral and deferral under the
Rome Statute (articles 13 and 16). The skewed institutional power of the Security
Council creates an environment in which it is more likely that action will be
taken against accused from weaker states than those from powerful states, or
those protected by powerful states. Thus the perception is that by referring the
Darfur situation to the ICC but not acting in relation to, for instance, Israel, the
council — through certain influential members — is guilty of double-standards.

This imbalance fuels concerns that international criminal justice
mechanisms threaten state sovereignty. This concern also applies to the ICC
which, although being a treaty body, is still subject to the chapter VII referral
and deferral powers of the Security Council. And although the Rome Statute
restricts the jurisdictional reach of the ICC (thereby making investigations
in Iraq and Gaza difficult), these structural limitations in the architecture of
international criminal justice are far less pronounced in the face of Security
Council power to refer and defer situations to the ICC.

The primacy of this issue for Africa is clear from several recent and worrying
developments.

First, the flood of criticism about the ICC’s work on the continent came
after the prosecutor’s announcement in June 2008 that he would be seeking an
indictment for President al-Bashir of Sudan following the Security Council’s
1593 referral of the Darfur situation to the ICC. These decisions not only
brought to the fore the inherent defects within the council — defects which for a

67

long time African and other states have complained about - but the controversy
was heightened because Sudan is not a state party to the ICC, yet non-state
parties on the council (most notably the United States) voted for or refrained
from vetoing the referral (and have the power to refuse deferral).

The irony of the United States, position cannot go unnoticed. It will be
recalled that just short of two weeks after the ICC’s statute became operative
on 1 July 2002, and before the court itself had opened its doors, article 16 of the
Rome Statute was being invoked by none other than Washington. Resolution
1422 was adopted by the Security Council at its 4572nd meeting, on 12 Iuly
2002. It was adopted by the vote of all 15 members, including seven states
parties to the statute, including two permanent members, France and the United
Kingdom. The preamble declares that the council is (Acting under Chapter VII
of the Charter of the United Nations). The resolution in paragraph 1 directly
refers to article 16 of the Rome Statute:

Requests, consistent with the provisions of Article 16 of the Rome Statute,
that the ICC, if a case arises involving current or former officials or
personnel from a contributing State not a Party to the Rome Statute over
acts or omissions relating to a United Nations established or authorized
operation, shall for a twelve-month period starting 1 July 2002 not
commence or proceed with investigation or prosecution of any such case,
unless the Security Council decides otherwise .

It is well known that adoption of the resolution was provoked by the threat of
the United States, in June 2002, to veto renewal of the mandate of the United
Nations mission in Bosnia and Herzegovina.153 Resolution 1422 would expire
after 12 months, and on 12 June 2003, at its 4772nd meeting, the resolution
was renewed for a further 12 months by the council’s adoption of resolution
1487, which is essentially identical to resolution 1422. The council expressed its
intention, as it had done the previous year, to renew the resolutions (under the
same conditions each 1 July for further 12-month periods for as long as may
be necessary). Only 12 members voted in favour of the resolution, however.
Germany, France and Syria all abstained.

Many statements from governments regarding these controversial resolutions
were highly critical. Some cited the `deep injustice’ of discrimination between
peacekeeping forces from sending states that are parties to the Rome Statute

68

and those that are not. It was further argued that the resolutions sought to
modify the terms of the Rome Statute indirectly, without amendment of the
treaty.

These statements demonstrate the politicised nature of article 16 and
the Security Council’s invocation thereof at the behest of — and under threat
by — a veto-wielding superpower. As one leading international criminal text
summarises:

The purpose of [article 16] was to allow the Council, under its primary
responsibilty for the maintenance of peace and security, to set aside the
demands of justice at a time when it considered the demands of peace
to be overriding; if the suspension of legal proceedings against a leader
will allow a peace treaty to be concluded, precedence should be given to
peace. The suspension of the proceedings would be only temporary. The
subsequent practice of the Council quoting Article 16 would however have
surprised those drafting the Statute.

If anything positive may be drawn from the United States’ purported political
abuse of article 16, they are the clear statements by others at the time of the legal
parametres of article 16. For example, in the Security Council, during the debate
on resolution 1487, a number of states referred to the travaux prépamtoires to
indicate the real intent of the drafters of article 16 of the Rome Statute:

Article 16 reads that 'no investigation or prosecution may be commenced
or proceeded with under this Statute for a period of 12 months after
the Security Council, in a resolution adopted under Chapter VII of the
Charter of the United Nations, has requested the Court to that effect'.
From both the text and the travaux prépamtoires of this article follow
that this article allows deferrals -only on a case by case basis; -only for a
limited period of time; -and only when a threat to or breach of peace and
security has been established by the Council under Chapter VII of the UN
Charter. In our View, article 16 does not sanction blanket immunity in
relation to unknown future events.

The next time article 16 came expressly to be referred to by the Security Council
was in the context of the Darfur referral. When the council referred the

69

Darfur situation to the ICC in 2005 by resolution 1593, there was a reference to
article 16 in the second paragraph of the resolution:

Recalling article 16 of the Rome Statute under which no investigation or
prosecution may be commenced or proceeded with by the International
Criminal Court for a period of 12 months after a Security Council request
to that effect.

It is again well known that that the reference was imposed by the United States
as a prerequisite for its abstention when the vote was taken. The US ambassador
at the time had this to say about the section’s objectives:

This resolution provides clear protections for United States persons. No
United States persons supporting the operations in the Sudan will be
subjected to investigation or prosecution because of this resolution.

Of course, whatever the reasons may have been for the reference to article 16 in
resolution 1593, article 16 henceforth came to be invoked directly by the AU in
its response to the ICC’s investigation in Sudan. One of the complaints forcefully
directed by the AU at the ICC’s work in Africa is that the court is undermining
rather than assisting African efforts to solve the continent,s problems. In this
regard the Sudan referral is an illustrative example. The Sudan referral has
become a touchstone for arguments around an article 16 deferral because of
the decision by the ICC prosecutor to indict al-Bashir. This in part appears to
be a central reason why most African states have been pushing for the Security
Council to defer the prosecution of al-Bashir.

This call has been repeated at the highest levels of the AU. For instance,
the AU Peace and Security Council called upon the Security Council to apply
article 16 of the Rome Statute and (defer the process initiated by the ICC’.

The response of the Security Council has been merely to 'note', the AU's
calls. For instance, the matter was considered by the council when it extended
the mandate of UNAMID, the AU-UN Hybrid Operation in Darfur established
by resolution 1769, for a further 12 months to 31 July 2009. In the extension
resolution - resolution 1828 - adopted on 31 July 2008 with 14 votes in favour
(with the US abstaining), the council `[e]mphasis[es] the need to bring to justice

70

the perpetrators of Crimes and urg[es] the Government of Sudan to comply
with its obligations in this respect’.

The council thereafter took ‘note’ of the AU communique of 21 July
2009, ‘having in mind concerns raised by members of the Council regarding
potential developments subsequent to the application by the Prosecutor of the
International Criminal Court of 14 July 2008, and taking note of their intention
to consider these matters further’.

This has drawn the ire of the AU. At a meeting of African states parties to
the Rome Statute from 8-9 June 2009 the states parties agreed that ‘another
formal resolution should be presented by the Assembly of Heads of State and
Government to the United Nations Security Council to invoke Article 16 of
the Rome Statute by deferring the Proceedings against President Bashir of The
Sudan as well as expressing grave concern that a request made by fifty three
Member States of the United Nations has been ignored’.162 The peak of its
response was a decision in Sirte, Libya on 3 July 2009 of the Assembly of the AU
in which it stated that because:

The request by the African Union has never been acted upon, the AU
Member States shall not cooperate pursuant to the provisions of Article
98 of the Rome Statute of the ICC relating to immunities, for the arrest
and surrender of President Omar El Bashir of The Sudan.

It also expressed its ‘deep regret’ that the request by the AU to the Security
Council to defer the proceedings against al-Bashir in accordance with article 16
of the Rome Statute has ‘neither been heard nor acted upon, and in this regard,
REITERATES ITS REQUEST to the UN Security Council’.

In its press release following the 3 July 2009 decision in Sirte on non-
cooperation with the ICC, the AU explained that its decision, ‘bears testimony
to the glaring reality that the situation in Darfur is too serious and complex
an issue to be resolved without recourse to an harmonized approach to justice
and peace, neither of which should be pursued at the expense of the other’.165
Accordingly, continued the press release, the 3 July decision ‘should be received
as a very significant pronouncement by the supreme AU decision-making body
and a balanced expression of willingness to promote both peace and justice in
Darfour (sic) and in The Sudan as a whole’ and ‘t is now incumbent upon the
United Nations Security Council to seriously consider the request by the AU for

71

the deferral of the process initiated by the ICC, in accordance with Article 16 of
the Rome Statute’.

Then at meetings of states parties called by the AU in June and November
2009, the problematic role of the council was one of the few issues around
which there was consensus. The role of the Security Council was the main
concern at the AU Experts Meeting (3-5 November 2009) with the subsequent
AU Ministerial Meeting (6 November 2009) recommending that article 16 be
amended to allow the UN General Assembly (under the Cold War ‘Uniting for
Peace’ resolution) to ‘exercise such power in cases where the Security Council
has failed to take a decision within a specified time frame...’. The reasoning was
that the General Assembly is more representative of the world community than
the council. [emphasis added]

...

72
…

The appropriate legal response

It is thus clear that the AU, driven by powerful interests, wants its calls for a
deferral to be taken seriously — in fact acceded to. It has expressed its call as
a preference for African solutions to African problems; and in particular for
African peace efforts not to be undermined by the ICC. But there is no doubt
that the AU’s criticisms of the ICC’s involvement in Sudan stem in great measure
from a central problem of the United Nations: the skewed politics of the Security
Council. Because of the council’s legitimacy problem, many states see its work
as a cynical exercise of authority by great powers. The problem is not helped by
the fact that article 16 was controversially invoked for the first time just days
after the court’s statute became operative on 1 July 2002 to protect the US — a
non-state party’s — peacekeepers from prosecution.

The Security Council’s engagement with article 16 since the Rome Statute
became operative will have exacerbated rather than softened those impressions.
And the result for the world’s first permanent international criminal court? The

73

result is that the uneven political landscape of the Security Council has become
a central problem of the ICC. Put differently, the work of the court has become
infected with the double-standard of the council.

The first point worth noting is that notwithstanding the problems with the
Security Councils’ composition, its role within the scheme of the Rome Statute
was foreseen and voluntarily agreed to by 31 African states parties who have
ratified the statute, and by all the states that were at Rome and who played a role
in drafting the statute in 1998.

Second, it also does not help that African critics appear ready to conflate
their (justified) criticism of the Security Council’s politics and composition
with (unjustified) attacks against the ICC for investigations that proceed from
a council referral. It needs to be stressed that the ICC is not responsible for the
Sudan referral coming to it — but now that the referral has been made it has
a legal duty under the Rome Statute to respond thereto. No doubt Israeli, US,
or the abuses of other states call for an international response. But to attack
the ICC for the failure of the Security Council to secure investigations is to
choose the wrong whipping boy. And to denounce the justified referral of the
Sudan crisis to the ICC for investigation is an unfortunate failure by African
leaders to recognise that rarest of examples: the Security Council overcoming
its own institutional and political deficiencies to the benefit of African victims
of massive human rights violations.

That leads to the third point, which is that referral by the Security Council is a
crucial element of the ICC’s ability to ensure justice for serious crimes no matter
where they are committed: Security Council referrals allow crimes committed
on the territory of non-states parties to come under the ICC’s jurisdiction. At the
same time, following a Security Council referral, the ICC prosecutor is obliged
by the Rome Statute to make an independent determination as to whether to
proceed with an investigation (which determination is subject to oversight by
judges in the pre-trial chamber).

These points notwithstanding, the power of the council to refer matters to
the ICC with the concomitant power to decide on deferral of matters under
article 16 of the Rome Statute remains a real problem, especially for African
states and the AU.

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Recommendations

As recent events make plain, concerns about the role of the Security
Council are unlikely to diminish in importance for African leaders
and governments, especially in light of the recommendations
of the AU Panel on Darfur, and the most recent AU summit
decision on the ICC. Moreover, as long as these concerns remain
unattended, they could deter African states from ratifying the
Rome Statute, thus undermining the quest for universality.
What exactly Africa wants on this issue is however unclear,
considering that most African states parties appeared not to support
the tabling of the AU’s article 16 amendment recommendation at the
8th ASP. [emphasis added] This (in)action shows the necessity of dialogue
and consensusbuilding among African states parties (within and outside
the forum of the AU) on the issue. That dialogue should proceed on the basis
of a proper understanding of the law and with an appreciation of the
possibilities and impossibilities (at least currently) regarding Security
Council reform. The following points of debate might inform the
discussion:

1) Security Council deferrals under article 16 of the Rome Statute
should be avoided if possible, and if utilised then only in exceptional
circumstances where the gravity of the offences and the impunity
afforded to perpetrators necessitates an international prosecutorial
response. The credibility of the ICC as a judicial institution
demands that the ICC be protected from external influence and
deferrals allow a political body to impose decisions on the ICC.
Deferrals also increase the possibility that prosecutions will not
take place, as the Sudan situation disquietingly demonstrates.

2) As stated in the SADC principles, (while recognising the role of
the Security Council in maintaining international peace and
security[,] the independence and operations of the Court and its
judicial functions must not be unduly prejudice[d] by political
considerations This same principle should apply to other political
bodies, including the AU, to preserve and promote the ICC,s
independence. Irrespective of a position on the appropriateness of

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Security Council deferrals, regional decisions on deferrals should
not be a basis for withholding cooperation with the court. This
would undercut the ICC’s real or perceived ability to operate
independently and impartially carry out its functions by making
the court dependent on decisions of political bodies that it does not
control. Furthermore, states parties have an international treaty
obligation under the Rome Statute to cooperate with the ICC, and
decisions by regional bodies such as the AU that undermine the
duty of cooperation place such states in an invidious position.

3) While regional decisions on deferrals, especially in cases involving
senior officials, risk allowing outside forces to interfere with the
court’s judicial work, other types of ‘regional input’, however, can
be valuable to fairly and effectively ensuring justice for serious
crimes. One key area is promoting greater ratification of the ICC’s
Rome Statute. Comprehensive ratification is the best way to ensure
that the ICC can prosecute serious crimes in all parts of the world
and promote the more even application of the law. African ICC
states parties should call for the AU to develop a plan to promote
widespread ratification of the Rome Statute within and beyond
Africa.

4) A further key area for ‘regional input’ relates to cooperation with
the ICC. As the court lacks a police force to enforce its judicial
orders, the ICC is reliant on cooperation by states and
intergovernmental institutions. African ICC states parties should
call for the AU to facilitate greater cooperation between the AU
and the ICC by ensuring that the ICC-AU liaison office in Addis
Ababa is established and that an agreement between the AU and
the ICC on cooperation is finalised. These are two measures which
have been taken by the United Nations with positive results.
African states parties should also call for the AU to extend an
invitation to the ICC to sessions of the AU Assembly. This can help
promote more effective cooperation, but also understanding and
discussion of concerns between the AU and the ICC.

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CLAIM 4: THE APPARENT IMPUDENCE AND
IMPRUDENCE OF INDICTING A SITTING HEAD OF STATE

...

Immunity under the Rome Statute

The Rome Statute has what at first appear to be conflicting provisions on
immunity. Article 27(1) makes clear that functional immunity is inapplicable to
any individual before the ICC, making specific reference to heads of state and
government. In addition, article 27(2) makes clear that the traditional doctrine
of personal immunity for sitting state officials also does not apply. This latter
provision is not found in the statutes of any of the earlier international criminal
tribunals, and thus is unique to the ICC. Article 98(1), however, provides that a
state is not obligated to hand an individual over to the court if doing so would
be ‘inconsistent with its obligations under international law with respect to the
State or diplomatic immunity of a person. . .of a third State, unless the Court can
first obtain the cooperation of that third State for the waiver of the immunity’.

While some see these two provisions (articles 27 and 98(1)) as in conflict,
the two provisions may, and should, be interpreted to complement each other.

The two articles complement each other if article 27 is interpreted to constitute
a waiver by a state party of any immunity (both personal and functional) that
might otherwise apply to their officials before the ICC, and article 98(1) is
interpreted to apply only in the case of officials from a state that is not a party to
the Rome treaty. Article 98(1) would thus apply with respect to officials whose
state has not waived their immunity through article 27, thus requiring the ICC
to seek a waiver with respect to such an official.

Thus it should be stressed that article 27 of the Rome Statute provides that
the ‘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.’ The position
of international law immunities before national courts is however less obvious.
For instance, in the groundbreaking Pinochet cases the House of Lords accepted
that serving international functionaries (such as current heads of state) retain
absolute immunities rationae personae (i.e. personal immunity on account of

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their status), irrespective of the nature of the crime alleged, unless waived by
the sending state. Their Lordships denied immunity to Pinochet in his capacity
as a former head of state. However, their Lordships made it clear that if he had
still been an acting head of state, this immunity in international law would have
continued to subsist.

The International Court of Justice has affirmed this immunity in its decision
in Democratic Republic of Congo v Belgium. With regard to the provisions
precluding immunity found in the constitutive instruments of a myriad of
international criminal tribunals (the most recent being the Rome Statute of the
ICC), the court expressly held that this exception to customary international
law was not applicable to national courts. This case law therefore suggests that
the diplomatic or head of state immunity of an accused prevents national courts
from dealing with allegations of international crimes unless that immunity has
been waived, or the senior official has left office.

This lack of clarity is particularly problematic in light of the fact that
national courts of states parties to the Rome Statute are expected to act in a
‘complementary’ arrangement with the ICC, prosecuting individuals for ICC
crimes and deferring to the ICC only when the national state is unwilling or
unable to perform its prosecutorial role.

The ICC's two-tier immunity structure: There is thus created a two-tier
immunity structure for state off1cials before the ICC: one for officials from
states that are a party to the Rome Treaty, and one for officials from states
who are not parties. For officials from state parties, neither functional
nor personal immunity applies with respect to any proceeding connected
to the ICC, as the state has waived any rights such officials may have to
such immunities through Article 27. For officials from non-state parties,
since those states have not ratified the Rome Treaty they have not, as a
matter of treaty law, waived any otherwise applicable immunities enjoyed
by their officials. Article 98(1) thus applies to their officials. In such a case
the Court would have to secure from a non-State party the waiver of its
official’s immunity before a third state is obligated to hand that individual
over to the ICC.

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Of course, the case of al-Bashir also raises complex questions, since in that
case although Sudan is not a party to the Rome Statute, the case arises out of a
Security Council referral.

However, there is strong academic support for the idea that all states -
including non parties - are bound to accept that the ICC can act in accordance
with its statute, and that it can oust the immunity ordinarily accorded under
international law to the head of state. The argument goes as follows:

* The Security Council’s decision to confer jurisdiction on the ICC, being
(implicitly) a decision to confer jurisdiction in accordance with the statute
must be taken to include every provision of the statute that defines how the
exercise of such jurisdiction is to take place.

* Article 27 is a provision that defines the exercise of such jurisdiction in that
it provides that ‘immunities which may attach to the official capacity of
a person, whether under international law or national law, shall not bar the
Court from exercising jurisdiction over a person’. The fact that Sudan is
bound by article 25 of the UN Charter and implicitly by Security Council
resolution 1593 to accept the decisions of the ICC puts Sudan in an analo-
gous position to a party to the statute. [emphasis added]

* The only difference is that Sudan’s obligations to accept the provisions of the
statute are derived not from the statute directly but from a Security Council
resolution and the Charter.

* On this view, the immunities of Sudanese officials including of the Sudanese
president are removed by article 27 thus meaning that under article 98, the
ICC is not barred from requesting arrest and surrender from Sudan, even
though Sudan is not a party to the Rome Statute.

Recommendations

Notwithstanding the academic authority suggesting that al-Bashir’s
immunity has been removed by the Rome Statute, there is as yet no
definitive ruling from the ICC on the relationship between articles 27
and 98 of the Rome Statute and the effect of those provisions for non-
state parties.

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It might thus be recommended that Sudan, other African states, and
the AU consider participating before the ICC in the appeals proceedings
concerning the decision to issue an arrest warrant against al-Bashir. In
those proceedings the issue of the immunity of the Sudanese president
and the impact of article 98 of the Rome Statute might be interrogated.
That participation might occur either by way of an appeal under article
82(1) by al-Bashir himself (although such an appeal would now be out
of time and condonation for the late filing would have to be sought),
or by Sudan or other African states raising issues in respect of article
98 through rule 195 of the ICC’s Rules of Evidence and Procedure,
or possibly by Sudan, other states or the AU itself seeking to make
submissions as amicus curiae in future proceedings before the court in
terms of rule 103 of the Rules of Evidence and Procedure.

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A request to lead oral evidence by a law professor to explain the defence proffered by
Adv Ellis was disallowed. The court's attitude to this request then was that it
is for the court to decide what the law is, and that the opinion of a witness is
in most (but not ail) instances inadmissible evidence.

par 5

ewn.co.za/2015/10/27/SA-is-still-obliged-to-arrest-al-Bashir

In a new development, prosecutor Bensouda says the ICC’s case against the Sudanese president shouldn’t be held up indefinitely by legal proceedings in South Africa.

In a submission to the pre-trial chamber, Bensouda seeks confirmation that South Africa has a continuing duty to arrest and surrender al-Bashir should he visit the country again.

Bensouda says the prosecution was given no hearing before the decision to extend South Africa’s deadline to explain its actions to the ICC was extended.