by Praharsh Johorey*
On the 6th of July, 2017 the International Criminal Court (“The Court”) ruled that South Africa was in breach of its duty to international law due to its failure to arrest Omar-Al-Bashir, the president of Sudan (as it then was) when he visited South Africa after the Court having issued two warrants for his arrest. However, the Court chose not to recommend any sanction upon South Africa (a party to the ICC), and did not consider a referral on non-compliance to either the Assembly of State Parties (“ASP”), the Court’s governing body, or the United Nations Security Council (“UNSC”) – citing concerns about the lack of any effective follow-up to previous referrals by either organisation.
In this essay, my primary purpose shall be to examine the current gaps in the ICC’s enforcement armour through an understanding of the judgement against South Africa – and subsequently assess whether there exist more meaningful mechanisms than referrals for it to be able to impose sanctions upon defaulting State Parties.
The one that got away
Let’s take a brief look at the facts that lead up to the dispute. In 2009, and again in 2010, the Court issued two warrants for Bashir’s arrest on charges of genocide, crimes against humanity and war crimes committed by his government in Darfur. Subsequent to the warrants being issued, all State Parties to the Rome Statute of the International Criminal Court (“Court’s Statute”), including South Africa, were transmitted requests for the arrest of Bashir to ensure his surrender to the Court. Until State Parties executed such warrant against Bashir, proceedings against him were halted.
Bashir travelled to Johannesburg, South Africa to attend a summit of the African Union in June, 2015 – prior to which the Court repeatedly notified the competent South African authorities of a request to arrest Bashir and surrender him to the Court. Moreover, the Court clarified to South African authorities that there existed no legal impediment to securing the arrest of Bashir, in that ‘South Africa’s immediate obligation to arrest and surrender Omar Al-Bashir was not subject to any delay, stay or suspensive effect.’ However, South African authorities did not arrest or surrender Bashir while he was on its territory between 13 and 15 June, 2015.
Immunity under International Law
The crux of South Africa’s legal justification before the Court was that Heads of State, such as Bashir, enjoy immunity from criminal proceedings under customary international law, as codified under Article 98(1) of the Court’s statute:
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.
Therefore, the defence contended that in the absence of Sudan expressly waiving Bashir’s immunity, the Court was precluded from making a request for his arrest and surrender. Moreover, it pointed to its obligations under the ‘Host Agreement’, concluded between itself and the African Union (“AU”), which required that it respect the immunities of Heads of State, such as Bashir, for the duration of an AU summit.
However, it was the contention of the Prosecution that no waiver was applicable in the case of Sudan. In 2005, the Security Council passed Resolution 1593 which dealt with the worsening international situation in Darfur by referring it to the Court’s Prosecutor, holding:
‘Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution…’
As per the Prosecution, acceptance of the obligation to ‘cooperate fully’ implied that Sudan’s conduct was to be regulated in accordance with the Court’s statute and was thus placed in a ‘situation comparable to State Parties’ to the Court’s Statute – subjecting them to Article 27(2), which reads as:
‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’
It was contended that a joint reading of Article 27(2), Article 98(1) and the aforementioned SC resolutions implied that Sudan had already consented to the Court’s jurisdiction as provided under 27(2).
Thus, the central issue placed before the Court was to clarify the correct position of immunity of Heads of State under Articles 27(2) and 98(1). It must be noted at the outset that in cases where States are not parties to the Court’s Statute, Article 98(1) is the applicable regime. In such situations, the Court cannot, without waiver, request a State Party to arrest and surrender the Head of a State not party to the Statute.
However, customary international law ‘prevents the exercise of criminal jurisdiction by States against Heads of State of other States, but does not contemplate blanket immunity when the arrest is sought on behalf of international courts. The Court noted that if the subjects of arrest were allowed to claim immunity to preclude the Court’s jurisdiction, it would prove to be an ‘insurmountable obstacle to the Court’s ability to exercise its jurisdiction’, and consequently incompatible with the object and purpose of Article 27(2).
Therefore, the Court made clear that just as states cannot invoke their own immunity when refusing to cooperate with the Court, those immunities cannot be invoked by a State party when assessing the obligation to enforce the Court’s directives horizontally (i.e. between states). Accepting the Prosecutor’s contentions regarding Resolution 1593, the Court held:
‘…the interactions between Sudan and the Court with respect to the Court’s exercise of jurisdiction in the situation in Darfur are regulated by the Statute. One consequence of this is that article 27(2) of the Statute applies equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law.
As a result, the Court concluded that South Africa did, under international law, have the obligation to arrest Bashir and surrender him to the Court – which it breached. However, it is in the inability to impose consequences of such breach that the fallibility of the Court becomes clear, and is, in my opinion, the reason why it continues to suffer at the hands of States that are entirely unwilling to partake in its quest to bring social and political leaders to justice.
The Court’s decision as to whether to impose sanctions upon South Africa for its breach was made in the context of increasing dissonance between the Court and the African Union, because of the Court’s perceived bias against Africa – with Burundi and South Africa going so far as to begin withdrawal processes from the Court (under Article 127 of the Court’s Statute). Despite South Africa’s withdrawal being deemed unconstitutional by its domestic courts, the fear of further alienating the African Union in general, and South Africa in particular, colours its final judgement.
The Court’s power of referral is codified under Article 87(7) of its Statute:
Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
The Court noted that the power to refer to either the Assembly of states or the Security Council (the appropriate authority in this case) is discretionary. This is arguable. The wording of the Article, suggests that the Court will refer the matter once it makes the determination that the actions of a State Party prevented the Court from exercising its powers under the Statute. This reading is confirmed by Article 17 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. This Article states:
Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it.
However, the Court noted six previous occasions on which such referrals were made, stating that ‘they have not resulted in measures against States Parties that have failed to comply with their obligations to cooperate with the Court, despite proposals from different States to develop a follow-up mechanism concerning the referral of States to the Security Council by the Court.’
As a result, the Court chose not to refer the matter to either the UNSC or the Assembly of States. This points to a larger problem with the Court’s enforcement mechanism than just its recurring inability to arrest Bashir. After the passage of Resolution 1593 (discussed earlier), the Security Council was unable to impose any sanctions upon State Parties that did not co-operate with directives of the Court, implicitly allowing states to escape any liability for their continuing breach of international law.
Politicisation of the ICC
In a series of Working Papers issued by McGill University in 2015 – it was argued that the politics inherent in the UNSC is responsible for the ineffectiveness that currently characterises the Court. The UNSC is also largely comprised of members that are not State Parties to the ICC, such as the US, China and Russia, which see the Court as infringing their sovereignty – meaning that it does have a vested interest in negating its effectiveness and legitimacy. More crucially, the relationship between the Court and the UNSC does not currently contemplate any follow-up mechanism to referrals made, meaning that the Court lacks any meaningful powers to bring vagrant State Parties to book.
However, it need not continue this way. Long-term reforms like restricting abuse of the veto power in the UNSC, or divesting the UNSC from influence over the Court itself are the more radical (and possibly more effective) suggestions to break the Court out of its current cycle, but seem unrealistic as policy goals. More pertinently, a number of States have recognised that there is an imminent need to strengthen cooperation between the Court and the UNSC. To this end, the Court could create a committee responsible for the regular monitoring of referrals made, and lobby both permanent and non-permanent SC members of the committee to facilitate international recognition of the gravity of criminality in question. This Committee could comprise of member states representing members of the Court equitably having fixed terms, and allow States (or blocs of states) to redress their multi-faceted grievances against the Court in its meetings, and lobby for meaningful change. However, the creation of such a Committee is contingent on the international community recognising the important role that the Court plays in the protecting international law, and by emphasising the community’s erga omnes obligation to fight impunity for such crimes.
The Court must also look inward. Allegations that the Court does selectively prosecute world leaders are widely prevalent, levelled particularly against the Court by the African Union. The Court must do more to demonstrate transparency in its process of determining who it investigates and subsequently chooses to prosecute, and emphasise to the international community the constraints it faces in pursuing objective and uniform prosecutions. Exempting certain nationals from the Court’s jurisdiction, such as the United States in the aftermath of the Iraq War gives a fillip to the belief that the Court caters to the whims of the UNSC, and cannot truly function as an independent organisation. Here, the proposed committee could ensure that it grant practical assistance to the Court as well,
The South Africa case could be viewed as a turning point in the history of the Court, in no small part due to the Court’s own admission regarding the inefficiency and redundancy of referrals. The current inability of the Court to hold State Parties accountable for their breaches of international law should concern defenders of the modern international legal order, and herald a wave of pleas for internal reform of the UNSC and the Court itself.
[*Praharsh Johorey is a fifth year student at NLIU, Bhopal. He was one of the quarter finalists at the World Rounds of 58th Edition of Philip C. Jessup International Moot Court Competition, 2017 and feigns to have moderate expertise in international law.]
 Prosecutor v. Omar Hassan Ahmad Al-Bashir (Judgement) ICC-02/05-01/09 (6 July 2017)
 2187 UNTS 90/37 ILM 1002 (1998)/ ATS 15
 S/RES/1593 (2005)
 International Court of Justice, “Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)”, Merits, Judgment of 14 February 2002,  ICJ Reports 3, para. 51.
 International Human Rights Internship Working Paper Series, Amelia Couture, Volume 3, Number 2 (Spring 2015)
 UNSCOR, 7285th meeting, S/PV.7285 (2014)