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Reflecting on South Africa's Attempt to Withdraw from the Rome Statute in Favour of Immunities for Sitting Heads of State: An Analysis of the International Crimes Bill 2017

Document Cited in Related
Vincent
Published date01 May 2020
DOI10.3366/ajicl.2020.0315
Date01 May 2020
Pages319-351
INTRODUCTION

The South African executive branch of government has initiated legislation that will enable it to withdraw from the Rome Statute of the International Criminal Court (‘Rome Statute’),1 which established the International Criminal Court (‘ICC’) in favour of customary international law immunities for sitting heads of states. This initiation is reflected in the International Crimes Bill that (if adopted) will replace the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (‘ICC Act’).2 Currently, South African law does not recognise customary international law immunities for sitting heads of state if they stand accused of committing international crimes.3 Speaking at the ICC Assembly of State Parties (‘ASP’), the then Minister of Justice and Correctional Services, Michael Masutha, who initiated the proposed legislation, informed the ASP that South Africa plans to withdraw from the Rome Statute citing South Africa's inability to deal with regional peace and security matters as a result of the Rome Statute's removal of immunities for sitting heads of state.4 Indeed, the preamble to the International Crimes Bill confirms that the Republic of South Africa is a founding member of the African Union (‘AU’) and therefore it ‘plays an important role in resolving conflicts on the African continent and encourages the peaceful resolution of conflicts wherever they occur’. The issue for South Africa is the fact that states parties are expected to cooperate with the ICC requests to arrest and surrender a sitting head of a non-signatory state. Article 13(b) of the Rome Statute gives power to the UN Security Council to refer a situation which involves a third state5 and thereby trigger the ICC jurisdiction.6 For example, Sudan is not party to the Rome Statute and therefore it has no obligations under the Rome Statute as a third state.7 However, the Security Council's referral of the Darfur situation to the ICC triggered the ICC jurisdiction.8

The consequence of being subjected to the jurisdiction of the ICC is that the customary international law immunities do not apply irrespective of one's status in terms of Article 27(2) of the Rome Statute.9 At the same time, Article 98(1) of the Rome Statute requires the ICC to request the third state to waive its immunity for the incumbent head of state before state parties can cooperate with the ICC by arresting and surrendering such a head of state to it. Therefore it appears that there is a conflict between Articles 27(2) and 98(1) of the Rome Statute. This point is illustrated by Masutha's statement before the ASP when he raised concerns ‘regarding [South Africa's] obligations vis-à-vis the [ICC], specifically in respect of the relationship between Articles 27 and 98 of the Rome Statute’:

South Africa is therefore still left in an invidious position of needing to abide by competing obligations as a State Party to the Rome Statute and having to fulfil its role as a mediator for peace especially in conflict situations on the African continent.10

The apparent conflict between Articles 27(2) and 98(1) of the Rome Statute becomes relevant under these circumstances and has been a contested issue before the PTC and among academic commentaries precisely because of President Al Bashir's issue.11

This article, therefore, reflects on the International Crimes Bill in relation to the customary international law immunities of sitting heads of states. It does so by revisiting the immunities of sitting heads of state under customary international law and examines the legal status of personal immunities for sitting heads of states in South Africa. In this regard, previous judgments both from the ICC and South Africa on the issue will be discussed. The article argues that if South Africa successfully adopts the International Crimes Bill (subject only to the procedural prescripts of the Constitution of the Republic of South Africa, 1996) this will have the effect of recognising customary international law immunities for sitting heads of state in South Africa and thereby resolving the legal conundrum arising from the non-recognition of customary international law immunities for sitting heads of state.

The article will, therefore, proceed as follows. In this part the article introduces the issue and then gives background to the discussion in part II. Part III deals with the relevant provisions of the International Crimes Bill, where the article discusses the provisions for the investigation and prosecution of the crimes, including the institutions responsible for the investigation and prosecutions. The fourth part examines the status of immunities available to sitting heads of states under international law, while part V revisits the status of customary international law immunities for sitting heads of state under the Rome Statute, where the apparent conflict between Articles 27(2) and 98(1) is discussed. Part VI examines the status of customary international law in South Africa in relation to immunities for sitting heads of state and part VII is the conclusion.

 BACKGROUND TO THE DISCUSSION

It is important to start this discussion by noting that the introduction of the International Crimes Bill is the second attempt by South Africa to withdraw from the Rome Statute. In October 2016 the Minister of International Relations and Cooperation deposited an instrument of withdrawal from the Rome Statute to the United Nations (UN) Secretary-General.12 To support its position to withdraw from the Rome Statute, the executive argued that the Rome Statute conflicts with the Diplomatic Immunities and Privileges Act 37 of 2001 (‘Diplomatic Immunities Act’) with regards to personal immunities of the sitting heads of states, which are recognised under customary international law.13 This argument was expanded by the Minister of Justice when he introduced a Bill to repeal the ICC Act in November 2016,14 where he reasoned that:

the Republic of South Africa, in exercising its international relations with heads of state of foreign countries, particularly Heads of State of foreign countries in which serious conflicts occur or have occurred, is hindered by [the Implementation Act], which together with [the Rome Statute] compel South Africa to arrest heads of state of foreign countries wanted by the [ICC] for the crime of genocide, crimes against humanity and war crimes and to surrender such persons to the [ICC], even under circumstances where the Republic of South Africa is actively involved in promoting peace, stability and dialogue in those countries.15

The executive's attempt to withdrawal from the Rome Statute was successfully challenged by the Democratic Alliance16 in Democratic Alliance v. Minister of International Relations and Cooperation on the basis that the executive failed to seek prior parliamentary approval before it deposited the instrument of withdrawal to the UN Secretary-General.17 The high court found that the executive's choice to deliver the notice of withdrawal from the Rome Statute without first obtaining parliament's approval breached section 231(2) of the Constitution and the separation of powers principle contained in that section.18 On its construction of section 231 process, the high court likened the withdrawal from a treaty to that of the ratification of a treaty in terms of section 231(2) (which states that ‘[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces’).19 In other words, in order for the executive branch of government to constitutionally withdraw from a treaty, it requires prior parliamentary approval following the same process as with the ratification of a treaty.20 Importantly, the high court also acknowledged that international law does not require parliamentary approval for an international agreement to be withdrawn; however, it is within the state's jurisdiction to settle which of the two political branches of government is entitled to decide on the withdrawal.21 The reason offered by the court for preferring parliamentary approval before such a withdrawal was that:

[T]here would be clumsy piece-meal processes, with undesirable and embarrassing outcomes for South Africa. It would have given different and confusing signals concerning its withdrawal from the Rome Statute. The [UN], the ICC and member states to the Rome Statute, as well as the broader international community, deserve a united, final and determinative voice from South Africa on this aspect. That can only be achieved through our country's normal legislative processes.22

 Essentially, the high court implied that depositing a withdrawal prior to following Parliament's processes of repealing the ICC Act would create confusion, both domestically and internationally, in relation to which obligations are to be complied with if South Africa has already withdrawn from the Rome Statute and yet Parliament has not repealed the ICC Act. In short, there would be no certainty in the law.23

In March 2017, a notice to withdraw the repeal Bill was tendered before Parliament.24 It was reported that ‘[the then Minister of Justice and Correctional Services] Masutha confirmed in Parliament … that the country would not withdraw from the ICC [and that the Democratic Alliance] ha[d] welcomed the decision’.25 However, as explained earlier, the Minister introduced the International Crimes Bill in December the same year.

 RELEVANT PROVISIONS OF THE INTERNATIONAL CRIMES BILL

It is clear from the provisions of the International Crimes Bill that its purpose is not to do away with the prosecution of the perpetrators of international crimes, but to make provisions for the confirmation of immunities for certain people. To illustrate this point, the preamble to the Bill states that Parliament is ‘mindful that international crimes must not go unpunished and that their effective...

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