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.

3. No international crimes exception to immunities under customary international law in regard to judicial assistance

vii. As currently stands, general international law does not provide for a general international crimes exception that would render immunities of Heads of State (or other State officials) irrelevant and inapplicable regardless of context in which these are raised.

viii. As noted by the SCA, a State is therefore not entitled by reason of international law or based on the Statute of the ICC to ignore claims of Head of State immunities when requested to cooperate with an international criminal tribunal. As discussed further below, this is apparent already from Article 98 of the ICC Statute.

ix. Where a state is required to cooperate with an international criminal tribunal (whether by reason of a treaty obligation or by reason of Security Council resolution) and that its doing so might infringe upon another state’s immunities, it must give due consideration to the specificities characterizing this sort of tribunals (including its supra-national character; its multi-national basis; its ultimate goal of accountability; its jurisdiction over crimes of international concern). It must also account for the fact that the justification for protecting sovereign immunities in the context of relations between states does not carry the same weight and importance where an international tribunal acting on behalf of the international community and/or a significant number of States is involved. Where these considerations have been given due consideration and where a State acts in accordance with its obligations towards an international criminal tribunal, it cannot be held responsible for doing so despite the immunities of another state (or those of one of its officials) being negatively affected.

4. Immunities at the ICC – Articles 27 and 98 of the ICC Statute

x. Article 27 and 98 are not in conflict. They regulate different aspects of the question of immunities. Article 27 reflects the customary law no-defence/no-jurisdictional bar exclusion. It applies only to the situation where an individual appears before the Court to answer ICC charges. Article 98, in contrast, regulates the situation where a State Party is being asked to cooperate with the Court and where the fulfillment of that request would conflict with its obligations under international law or would imply a violation of another State’s immunities.

xi. Article 98 provides for two important safeguards enabling the Court and the State whose cooperation is sought to arbitrate between various, potentially conflicting, international legal obligations:

a.       It provides for a blocking mechanism (“The Court may not proceed with a request”) that sets a limit to the ability of the Court to demand cooperation from a State where such cooperation would result in the requesting state violating the sovereign immunities of another State or that of its officials.

b.      It provides for a ventilation of responsibilities in trying to resolve such a conflict: it is for the requested state to determine whether, according to its domestic legal order, compliance with a request from the Court would violate other obligations under international law; where such a conflict exists, it is for the ICC to try to resolve it.

xii. Immunities may, therefore, be applicable and remain relevant in a situation where a tribunal – domestic or international – seeks the assistance of another State in relation to a person who would otherwise enjoy head of state immunities (e.g., for the purpose of arrest; transfer; interview; assets-related measures) even where the underlying charges involve allegations of international crimes.  In such a case, it is for the requested State to determine, based on its own legal order and international obligations, what impact the immunities of a third State might have on its obligation to comply with a Court’s request for assistance.

xiii. The ICC Statute does not set a hierarchy of norms between the obligation of a State Party to cooperate the Court and the regard that must be given to sovereign immunities of a third State. And whilst general international law does not arbitrate a possible conflict between these two sets of obligations, it makes it clear that a State cannot be held responsible for disregarding such immunities when this is done in the fulfillment of an obligation to cooperate with an international criminal tribunal (whether that obligation arises from a UNSC Resolution or from a treaty provision).

xiv. Being a State Party to the ICC does not, therefore, provide general absolution from a State’s obligation to ensure that it acts in conformity with the immunities of another state and to verify its own compliance with those immunities where the citizens of a third party are concerned by the implementation of a request for assistance emanating from the ICC. The ICC Statute did not endow the ICC with the authority to force State Parties to act in violation of their own laws or their other international obligations and the Court does not have the jurisdictional competence to order or expect of a State Party to disregard or ignore immunities attaching to an official of a third state. Nor is it for the ICC to determine whether the implementation of its request by that State is consistent with its international obligations. The Statute of the ICC leaves that determination to be made by the requested State according to its own laws and international obligations (including those arising from the ICC Statute).

xv. The ICC Statute, therefore, does not bind a State to comply with any request for assistance regardless of the legal consequences that this could have in relation to immunities attaching to another state or one of its officials. Instead, it leaves it to the requested State in each case to ensure that it complies with a request for assistance to the fullest extent compatible with its other international obligations. To that extent, the fact that the request for assistance comes from an international tribunal rather than a foreign national court is relevant to determining whether that is the case in a particular instance (see above).

5. Approach, reasoning and conclusions of the Supreme Court of Appeal

xvi. From the point of view of international law, the interpretation adopted by the Supreme Court of Appeals and its articulation of the relationship between international and domestic law would appear to be consistent with the principles laid down above.

xvii. It was right, ultimately, for the Supreme Court of Appeal to determine that neither general international law, nor the Statute of the ICC, provided a ready-made answer to the legal challenge before it and that the lawfulness of South Africa’s response to the ICC’s warrant was to be determined based on domestic, South African, law as interpreted in light of South Africa’s international law obligations (including those arising from the ICC Statute).