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SA’s teachable moment: Sudanese al-Bashir

Bo Mbindwane is a business executive with experience in mining and other sectors. He has past experience in public administration and is an indepedent mining analyst. On twitter: @mbindwane

In the ICC Pre-Trial Chamber and the Appeals Chamber, following consideration of Omar al-Bashir’s arrest warrant, there remains uncertainty over the question of immunity in relation to proceedings against him and sovereign states’ legal obligations in this regard. Most of the written op-eds have been on feelings and morality and not substantive issues, realities and international law.

South Africa is a land of ‘forgivers’, with its fair share of human rights criminals grazing about freely from time to time, opining on how their victims ought to behave themselves. The Truth and Reconciliation Commission (TRC) brought with it tension between international human rights and immunities for ‘crimes against humanity’. So how do we resolve this in post-Apartheid South Africa? And what is the legal reality?

Immunity

Robert Cryer, in An introduction to international criminal law and procedure (2007), states on the imperatives of Immunity under International Law:

“The law of immunities has ancient roots in international law, extending back not hundreds, but thousands, of years. In order to maintain channels of communication and thereby prevent and resolve conflicts, societies needed to have confidence that their envoys could have safe passage, particularly in times when emotions and distrust were at their highest. Domestic and international law developed to provide both inviolability for the person and premises of a foreign State’s representatives and immunities from the exercise of jurisdiction over those representatives.”

Without this diplomatic immunity prevailing, it could be argued that the newest nation in the world, South Sudan, would not have been born. President Thabo Mbeki, who on behalf on the African Union (AU) slaved against all odds to see the birth of South Sudan, would have been unable to conduct his work with ‘fugitives’ from international justice he was obliged to handcuff. Even with the birth of South Sudan and the halting of conflicts between Arab and Christian peoples, a new conflict has resumed amongst the South Sudanese themselves, once again requiring that Mbeki put his hat and coat on, on behalf of the AU with South Africa as sponsor.

In accordance with the Diplomatic Immunities and Privileges Amendment Act 35 of 2008, South African International Relations Minister Maite Nkoana-Mashabane published a public notice, which granted immunity to all diplomats and heads of state attending the 25th African Union Summit in Johannesburg, which ended on 15 June. The immunity was not conditional or with exceptions.

The United States State Department funded local NGO the South Africa Litigation Centre (SALC) and launched papers with the Gauteng High Court to have Sudanese President Omar al-Bashir arrested on the 2009 International Criminal Court (ICC) Arrest Warrant. The SALC argued that Minister Nkoana-Mashabane did not have authority to offer immunity to persons sought by the ICC. The court needed time to consider the facts and the case in a full bench – and issued an interim order that the South African government was to prevent al-Bashir from leaving the republic until the court had made its determination. President al-Bashir has been subject to an arrest warrant since the late 2000s. He has visited Nigeria, Kenya, Denmark, Uganda, Turkey, and Chad – all of whom are party to the Rome Statute – as well as a number of states that are not, like Saudi Arabia and China.

In the ICC Pre-Trial Chamber and the Appeals Chamber, following consideration of the al-Bashir arrest warrant, there remains uncertainty over the question of immunity in relation to proceedings against him and sovereign states’ legal obligations in this regard. Most of the written op-eds have been on ‘feelings and morality’ and not substantive issues, realities and international law.

Types of immunity

There are two kinds of diplomatic immunity: functional immunity and personal immunity. Functional immunity relates to conduct carried out on behalf of a State. This form of immunity is based on the notion that a State may not sit in judgment on the domestic policies of another State. This is to engender sovereignty and equality amongst States. Functional immunity therefore applies to conduct done as a State actor and this immunity does not lapse. On the other hand, personal immunity relates to office holders in relations to their conduct in official capacity. Personal immunity is absolute but can be waived by the State concerned.

The International Military Tribunal in Nuremberg that tried the Nazis held that Functional Immunity does not apply to acts condemned as criminal through international law.

Decades later, in the Arrest Warrant case, the International Court of Justice (ICJ) held that Belgium had “failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of Congo enjoyed under international law” when it issued an arrest warrant for him for crimes against humanity and war crimes. This ruling by ICJ means al-Bashir enjoys absolute personal immunity irrespective of the charges, before the state courts or, conversely, the High Court in Gauteng.

Rome Statutes Article 27(2) and article 98(1): The confusion

Article 27(2)

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.”

Article 98(1)

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.”

Rome Statute 27(2) says functional immunity is stripped – Article 98(1) says Chief Justice Mlambo erred in his judgment. This is further supported by jurisprudence as read above in the DRC Minister Belgium case, where the ICJ states Belgium failed to apply Ministers inviolable legal protections under international law by allowing an arrest.

Article 98(1) is even more authoritative if the person in question comes from a state, which is non-party to the Rome Statute.

On the matter of al-Bashir, the ICC is well aware of the State’s difficulties in this regard as it did issue a ‘communiqué’ to Kenya in 2010 to “[notify] the Court that a request for surrender or assistance raises a problem of execution in respect of article 98”.

In terms of Section 8 of South Africa’s domesticating ICC Act, an ICC arrest warrant must be referred to the Director-General of Justice with the necessary documentation to satisfy a local court that there are sufficient grounds for an arrest. When al-Bashir was rumoured to be travelling to South Africa before this round, the Justice Department made public that it had sent the ICC dossier to the magistrate for endorsement which meant al-Bashir’s arrest was made legal and immunities stripped. The question now is whether that past endorsement has lapsed or remained valid, even with the fresh application by the US-backed SALC petition to Judge Mlambo.

With all being said, South African legislation is silent on immunities and it is possible that both courts that endorsed al-Bashir arrest warrant are challengeable. Minister Nkoana-Mashabane’s work is constrained and perhaps complicated by the inadequacy of the SA ICC Act. The Act will also have to fully recognise the AU and its resolutions or conventions.

Whilst South Africa’s Constitution Section 232 makes customary international law part of South African law: “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”. I can argue that parts of the ICC Act are inconsistent with Diplomatic Immunities and Privileges Act 35 of 2008.

It is inconceivable that government can issue invitations to diplomats with requisite immunities, only to entrap them using another piece of law. Parliament is now duty bound to once and for all make it clear what South Africa’s policy is on the seemingly conflicting Article 27 and 98 of Rome Statutes to restore her credibility that was damaged during the al-Bashir ‘catch me if you can’ saga.

Human Rights and Diplomacy are both fundamental and basic. What confronts many South Africans on the matter of al-Bashir is which of these basic and fundamental principles is supreme. Application of choice need not give rise to ‘hypocrisy’, as some have suggested. Whatever decision one makes – its impact will determine how South Africa is regarded amongst nations. Either as a potential mediator in conflicts or world policemen. It will indeed mean never again having an American president visiting South Africa as part of the documentation includes such papers as general immunity. It also means consideration that most embassies will be obliged to close shop.

The most obvious temptation is to do it the Mandela way, where there appears to be a conflict between human rights and diplomatic immunities – the ‘Mandela Hierarchy Perspective’ (I call it): which one prevails? Which one has priority over the other? Is having FW de Klerk as Mandela’s deputy president rank above prosecuting him for Apartheid crimes after he refused to acknowledge any responsibility during the TRC?

Diplomacy cannot occur without immunity. Because diplomatic immunity is generally reciprocal, it cannot be lived without; as such, diplomatic immunity is a valuable tool. There will be no South Sudan and no New South Africa without immunity.

Diplomatic immunity must be maintained under international law; certain foreign government officials are not subject to the jurisdiction of local courts and other authorities if South Africa intends to play a serious role in world peace and order.

It must be made clear that certain international events suspend local laws to certain people, that al-Bashir’s plane and car becomes a ‘diplomatic bag’ whether we like it or not, whether it feels good or not.

As for South Africa’s Parliament, it has work to do to align its laws that may be conflicting or silent to avoid another embarrassment towards a foreign guest, be he lovable or not.

As for the ruling issued by Judge Mlambo barring al-Bashir’s departure, it will appear the Judge was not assisted by plaintiff as to how best issue a ruling of this nature. There are so many organs of State that are involved in the movement of a visiting head of state including his own embassy – that such a ruling will have to be made to Cabinet as a whole and not some special department for it to be effective and responsive. DM

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