Where Do We Find a Solution to the ‘Abuse’ of Diplomatic Immunity?

By Rishikeesh Wijaya*

Court HammerUproar about purported ‘abuses’ of diplomatic immunity has not been uncommon, most recently involving the wife of the sitting Head of State of Zimbabwe, Dr. Grace Mugabe. Media reports assert that Dr. Mugabe attacked a South African model with a piece of electrical cord in a Johannesburg hotel suite. South Africa retrospectively granted her diplomatic immunity, following an assertion by the Embassy of Zimbabwe, and she eventually left the country to return to Zimbabwe with no charges pressed against her.

This was a “U-turn” from the initial decision preventing her from leaving pending the outcome of investigations. Deputy President of South Africa, Mr. Cyril Ramaphosa in response to questioning by South African Members of Parliament, said that immunity was granted in line with “internationally-recognised immunity regulations” but also admitted that it was “the first time [they] have utilized this type of convention”. It is unclear what convention he was referring to.

A separate incident occurred during Turkish President Erdogan’s trip to the United States America in May 2017. Members of his security detail and security guards from the Turkish embassy clashed with peaceful protestors outside the home of the Turkish ambassador in Washington DC.

Diplomatic immunity was initially claimed by Turkish authorities but it has now been reported that 19 people, including 15 identified as Turkish security officials were indicted by a grand jury in Washington DC. Several of these security officials returned to Turkey and it is unclear if there will be any legal repercussions in the United States. It is also unclear if any of those indicted remain in the US as diplomatic staff for Turkey. Continue reading

ICC: Gambia to leave the International Criminal Court, following South Africa and Burundi

The Gambia announced on Tuesday that it will withdraw from the International Criminal Court (ICC), following similar announcements earlier this month from South Africa and Burundi.

Gambian Information Minister Sheriff Bojang accused the Court of being “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”.

Al Hadji Yahya Jammeh, President of the Republic of the Gambia, addresses the 69th United Nations General Assembly in New York September 25, 2014 ©REUTERS/Lucas Jackson

Al Hadji Yahya Jammeh, President of the Republic of the Gambia, addresses the 69th United Nations General Assembly in New York September 25, 2014 ©REUTERS/Lucas Jackson

He said that the ICC had failed to go after Western war crimes, citing the omission to investigate the European Union over the deaths of migrants on the Mediterranean sea and the ICC’s failure to indict former British Prime Minister Tony Blair for his involvement in the Iraq war.

The withdrawal of the Gambia would be especially painful for the ICC since its chief prosecutor, Ms Fatou Bensouda, is from the Gambia and previously held the post of Gambian justice minister. Other high profile international jurists also come from Gambia, including the International Criminal Tribunal for Rwanda (ICTR) Chief Prosecutor Hassan Bubacar Jallow.

Last week Friday, South Africa announced that it had officially initiated the process of withdrawing from the ICC. South Africa reasoned that its obligations with respect to the peaceful resolution of conflicts were at times “incompatible” with the interpretation given by the ICC of obligations raised in the Rome Statute.

South Africa’s withdrawal followed a controversy last year when it failed to arrest President Omar Al Bashir, who is wanted by the ICC, when he attended an AU summit in South Africa. South Africa’s Supreme Court of Appeals ruled that the government had violated national laws and its international obligations for not having arrested Bashir. Continue reading

South Africa to Withdraw from the ICC

International Criminal Court New PremisesSouth Africa has formally begun the process of withdrawing from the International Criminal Court (ICC).

The Rome Statute, under which the ICC was set up, requires the arrest of heads of state for whom a warrant was issued.

The country’s Minister of justice, Michael Masutha, said that South Africa was “hindered” by certain parts of the Rome Statute, primarily the one that “compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law, who are wanted by the ICC for genocide, crimes against humanity, war crimes, to surrender such persons to the International Criminal Court.”

He said that South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state and that the Rome Statute is ”in conflict and inconsistent” with such rule.

Last year, a South African court criticised the government for refusing to arrest Sudan’s President Omar al-Bashir.

Mr Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity over the conflict in the Darfur region.

Mr Bashir was attending an African Union summit in Johannesburg, when the South African government ignored an ICC request to arrest him.

Human Rights Watch has criticised South Africa’s decision.

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes,” said Dewa Mavhinga, the NGO’s Africa division senior researcher.

“It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored,” Mr Mavhinga said.

A written notice of South Africa’s intention was submitted to the UN secretary general. The withdrawal from the ICC will be formalized one year after the notification. During the 12 months’ notice period, South Africa will remain under the Rome Statute.

Immunities and International Crimes – The Al-Bashir Conundrum

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir

On 13 October 2016, Professor Guénaël Mettraux and Professor John Dugard filed an amicus curiae brief before the Constitutional Court of South Africa In the matter between the Ministry of Justice and Constitutional  Development and the Southern African Litigation Center (“President Al-Bashir case”).

The proceeding are critically important to resolving the tension between a State’s obligation to respect the sovereign immunities of foreign state officials (including heads of states) and that State’s obligation to cooperate with the ICC.

In resolving this tension, Profs Mettraux and Dugard have laid down a series of important principles and effectively mapped a way out of the problem:

1. Immunities and international crimes – A brief historical overview

i. Traditional international law used to grant absolute immunity to heads of state in respect of all acts, commercial and criminal.

ii. Over time, international law started to carve out a number of exceptions to that general and absolutist principle (in particular in respect of commercial acts). This includes an exception to immunities as a defence and/or bar to jurisdiction when faced with international crimes charges (see next).

2. A customary international law exclusion of immunities as a defence and jurisdictional bar to international crimes prosecution

iii. Since at least the end of the Second World War and criminal prosecutions pertaining to that conflict, customary international law excludes the possibility for a Head of State (and other State officials) to rely on his immunity as a defence or as an objection to the jurisdiction of a court before which he appears on charges of international crimes (war crimes; crimes against humanity; or genocide).

iv. This is so whether the jurisdiction seeking to try him is a domestic or an international one. The loss of immunity in such a case is determined, not by the – national or international – character of the tribunal trying such a defendant, but by the international character of the underlying offence with which he is charged.

v. In the context of that exclusionary rule, none of the relevant instruments or relevant incidents of state practice draw a distinction between official and private acts of state officials. All conduct amounting to an international crime are encapsulated into the general exclusionary rule. Nor do these draw a distinction between sitting and former state officials. The exclusion of immunities as a defence and jurisdictional bar is absolute in its effect and pertains to any individual.

vi. Article 27 of the Statute of the ICC recognizes and gives effect to that general principle in the context of proceedings before the ICC. As a jurisdictional provision (dealing with one aspect of the Court’s jurisdiction ratione personae), Article 27 only deals with the effect (or, rather, the absence of effect) of an official position and related immunities on the jurisdiction of the Court itself. It does not regulate, nor purports to regulate, the effect of these immunities on the jurisdiction of any other court. Continue reading

What South Africa Leaving the International Criminal Court Would Mean

By Milton Nkosi*

International Criminal CourtThe call by South Africa’s governing party to withdraw from the International Criminal Court (ICC) has implications for the rest of the continent. But it is not going to happen any time soon.

When South Africa joined the ICC in 1998 the country had just emerged from the scourge of apartheid.

South Africans were fresh victims of gross human rights violations and had hoped that the rest of the world would join the ICC.

But some of the most powerful countries did not follow.

And now the governing African National Congress (ANC) is calling for the country to leave the ICC – which would make it the first to do so.

‘Hitler of Africa’?

The chairman of the ANC’s commission on international relations, Obed Bapela, said that the ICC had “lost direction”.

Mr Bashir was able to fly out of South Africa in June despite a warrant for his arrest for war crimes

This move away from the ICC comes not long after the South African government was criticised for allowing Sudan’s President Omar al-Bashir to leave the country despite an ICC arrest warrant for alleged war crimes in Darfur. Mr Bashir denies the allegations, saying they are politically motivated.

Mr Bapela insisted South Africans were “very keen” to hear the stories of the victims of Darfur, as they had heard the victims of political crimes committed during the apartheid era at the Truth and Reconciliation Commission.

“Human rights matter to us but we want a fair system,” he said. Continue reading

South Africa Plans to Leave the International Criminal Court

South African ParliamentThe African National Congress (ANC), South Africa’s governing political party, wants the country to begin the process of withdrawing from the International Criminal Court (ICC) because it believes the ICC has lost its direction.

“The principles that led us to be members [of the ICC] remain valid and relevant […] however the ICC has lost its direction unfortunately and is no longer pursuing that principle of an instrument that is fair for everybody,” said on Sunday the party’s international relations subcommittee chairperson Obed Bapela.

There were a handful of powerful countries which refused to be ICC members, yet they still had the power to refer matters to the court, Bapela said.

He added that South Africa would continue to carry the flag of human rights and an end to genocide.

The matter is already on the agenda for the upcoming Assembly of State Parties meeting which would be attended by all ICC members in November. It will also be tabled at the African Union summit to be held in January.

This debate arose as the South African government faces criticism for ignoring a South African High Court order to arrest Sudan’s President Omar al-Bashir when he was in Johannesburg for an African Union summit last June.

The ICC had issued a warrant of arrest for Bashir, wanting him to stand trial on charges of war crimes and genocide.

The High Court ruled that government had acted unconstitutionally when it did not arrest him.

Bashir Flight Leaves ICC in Stalemate

By Dr Miša Zgonec-Rožej*

Omar Al Bashir

Omar Al Bashir

South Africa’s failure to arrest the Sudanese president is the latest incident in a troubled relationship between the court and African states.

Sudan President Omar Al-Bashir was allowed to leave South Africa on 15 June  in defiance of a temporary order issued a day earlier by the High Court in Pretoria, which required South African authorities to prevent him from leaving the country until an application submitted by a human rights group was heard by the court. Just hours after Bashir’s departure from South Africa after attending the African Union (AU) summit in Johannesburg, the court ordered that President Al-Bashir be arrested and surrendered to the International Criminal Court (ICC).

As a state party to the ICC, South Africa thereby breached its obligation under the Rome Statute to execute the ICC arrest warrant issued against the president. This highlights an ongoing problem for the ICC: without states’ cooperation, and lacking its own enforcement mechanisms, the court is forced to leave cases suspended indefinitely.

 Lack of immunity

President Bashir has been sought by the ICC for his alleged involvement in genocide, crimes against humanity and war crimes committed during the conflict in Darfur.  Sudan is not a party to the Rome Statute which established the ICC, but the ICC has jurisdiction as a consequence of a 2005 referral to it by the UN Security Council of the situation in Darfur. The African Union, however, has continually opposed the prosecution by the ICC of heads of states during their term of office. The AU has requested the suspension of proceedings against President Bashir and called upon AU members not to arrest and surrender him. Continue reading

South African Court Grants Order Preventing al-Bashir’s Departure

Omar Al Bashir

Omar Al Bashir

Pretoria High Court Judge Hans Fabricius has granted the Southern African Litigation Centre (SALC) a temporary order to prevent Sudanese President Omar al-Bashir from leaving South Africa until the urgent application to have him arrested has been heard.

The application has been brought by the SALC on behalf of a group of human rights organisations.

Yesterday, the International Criminal Court (ICC) has called on South Africa to arrest Sudanese President Omar al-Bashir who is in the country for an African Union (AU) summit.

Omar al-Bashir Bashir is wanted for war crimes, crimes against humanity and genocide over the conflict in Darfur.

South Africa’s Police Must Investigate Zimbabwe Torture Allegations

By Max du Plessis*

10-11-2014-SAPS-Zimbabwe-Torture-ContentOn 30 October 2014, the Constitutional Court of South Africa handed down its judgment in a landmark case for international criminal justice.

The appeal related to the responsibilities of the South African Police Service (SAPS) under domestic and international law to investigate acts of torture, as a crime against humanity, that were allegedly committed in Zimbabwe.

The decision, by South Africa’s highest court, reaffirms the obligations set out in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) regarding investigation and prosecution of international crimes.

In March 2008, the Southern African Litigation Centre (SALC) submitted a dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA) detailing allegations of torture in Zimbabwe. The NPA took no action, indicating that they could only do so if the police investigated the allegations and laid charges. Continue reading