South Africa's competing obligations in relation to international crimes

• Jurisdiction: South Africa
• Author: Franziska Sucker,Lilian Chenwi
• Date: 01 October 2015
• Pages: 199-245
• DOI: 10.2989/CCR/2015.0009

South Africa’s Competing Obligations

in Relation to International Crimes

Lilian Chenwi *

Franziska Sucker†

I InTroducTIon

The need to end impunity for international crimes is largely recognised by

the international community.1 Accordingly, significant obligations have been

imposed, by both conventional (treaty) and customary inter national law, on states

to prosecute certain international crimes.2 In addition to the duty to prosecute,

conventional international law also imposes the duty to investigate allegations

of international crimes3 as well as the duty to cooperate in the investigation and

prosecution of international crimes.4 Conventional law has in fact accentuated a

duty upon states to exercise jurisdiction over international crimes.5

South Africa’s domestic legal order, at least in theory, is receptive to these

obligations, includi ng having in place a legal framework for the enforcement

of international criminal law within the country. This is evidenced from its

ratification and i mplementation of treaties t hat impose these obligations on South

Africa in relation to certain internat ional crimes.6

* Professor, School of Law, Universit y of the Witwatersrand.

† Senior Lect urer, School of Law, University of t he Witwatersrand.

1 This is spelt out i n various documents. For example, t he determination to end impu nity for ‘the

most serious cri mes of concern to the internat ional community ’ is stated in the preamble to t he Rome

Statute of the Inte rnational Cr iminal C ourt, UN Doc A/CONF183/9 (17 July 1998), reprinted in (1998)

37 IL M 1002 (‘Rome Stat ute’). Africa n states have also reite rated their condem nation and reject ion

of impunity a nd commitment to f ight impunit y in the preamble to t he Protocol on Amendme nts

to the Protocol on the St atute of the Africa n Court of Justice a nd Human Rig hts (2014). In simple

terms, an i nternational cri me is ‘an offence which is created by inte rnational law’ ( R Cryer, H Friman,

D Robinson & E Wil mshurst An Introduction to International Criminal La w and Procedure (2nd Edition,

2010) 8) or, put different ly, ‘any act enta iling t he criminal liab ility of the pe rpetrator and em anating

from treaty or c ustom’ (I Bantekas International Cr iminal Law (4th Edition, 2010) 8).

2 See B van Schaa ck & RC Slye International Criminal L aw and its Enforcement: Cases and Mater ials (2nd

Edition, 2 010) 21.

3 See, eg, the C onvention agai nst Torture and Other C ruel, Inhu man or Degrad ing Treatment or

Punish ment (1984) art 11 (Requir es states part ies to promptly and impa rtially investi gate allegations

of torture).

4 Articl e 86 of the Rome Statute ( Places a general obl igation on state s parties to ‘coope rate fully

with the [ Internation al Crim inal] Cour t in its investi gation and prosec ution of crimes wit hin the

jurisdic tion of the Court’).

5 See, eg, prea mble to the Rome Statute ( Recalls ‘t hat it is the duty of ever y State to exercise its

crimi nal jurisdicti on over those responsible for internat ional crimes’).

6 The South Afr ican governme nt ratified t he Rome Statute on 27 November 2 000 and

implemented it in 2 002. Implementation of the Rom e Statute Act 27 of 2002 (‘ICC Act ’). See also the

Implementation of t he Geneva Conventions Act 8 of 2012 (‘G CA’) and the Prevention and C ombating

of Torture of Persons Act 13 of 2013 (‘Torture Act ’).

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CONSTITU TIONAL COURT REVIEW

The country’s relationship with international criminal law in practice is,

however, controversial and has been described as ‘complex’ and ‘schizophrenic’.7

South Africa has taken contradictory positions on issues relating to international

crimin al law and justice. For example, the South African government par ticipated

in the drafting of the Rome Statute of the International Cr iminal Court (Rome

Statute)8 and supported the referral of Libya to the International Criminal Court

(ICC). But four months after the referral, it joined other states in requesting the

deferral of the case.9 Also, despite having what has been described as ‘the most

progressive legislation for the prosecution of international crimes by its courts’,

the government has been reluctant to effectively implement the leg islation.10 Most

controversially, on 19 October 2016, the government submitted an Instrument

of Withdrawal from the Rome Statute to the United Nations (UN) Secretar y

General.11 Following a High Court decision,12 it withdrew the Instrument of

Withdrawal.13

The complex nature of South Africa’s relationship with the ICC is compounded

by the position of the African Union (AU). The AU has opposed the prosecution

of international crimes in the exercise of universal jurisd iction by non-African

states, has argued that the ICC is selective or biased, and has decided that AU

member states should not cooperate with the ICC in the execution of the arrest

warrants issued by the ICC against President Omar al-Bashir of The Sudan

(al-Bashir) and the late Colonel Qadhafi of Libya.14 The AU’s position places

7 See, eg, C Gever s ‘Internat ional Crim inal Law i n South Africa’ i n E de Wet, H Hestermeyer &

R Wolfrum (eds) The Implementat ion of International Law in Ge rmany and South Africa (2015) 403–404.

8 Rome Statute (note 1 above).

9 See Gevers (note 7 above) at 403.

10 Ibid at 404.

11 See ‘Decl aratory statement by the Republic of Sout h Africa on the De cision to Withdraw f rom

the Rome Statute of t he Internation al Crimi nal Court’ quoted in ‘Rome S tatute of the Inter national

Crimi nal Court Rome, 17 July 1998–S outh Africa: Withdrawa l’, C.N.786.2016.TREATIES -XVIII.10

(Deposita ry Notif ication)(25 October 2016), avai lable at https://treaties.un.org/doc/Publicat ion/

CN/2 016/CN.7 86. 2016 -E ng.p df (‘ Instru ment of Withdrawal’ ). In accordance wit h art 127(1) of the

Rome Statute, Sout h Africa’s ‘withd rawal shal l take effect one year af ter the date of receipt of t he

notificat ion, unless the not ification speci fies a later date’. On the const itutionalit y of this controversia l

action, see pa rt VII.

12 Democratic Alli ance v Minister of Inter national Relat ions and Cooperation and Oth ers (Council for the

Advancement of the South Afr ican Constitution Int ervening ) [2017] ZAGPPHC 53, 2017 (3) SA 212 (GP),

[2017] 2 All SA 123 (GP).

13 See ‘South A frica revokes ICC wit hdrawal’, Mail & G uardian (8 M arch 2017), availa ble at

https://mg.co.za/article/2017-03-08-south-af rica-revokes-icc-withdrawa l.

14 See Decisi on on the Meeting of African States Parties to the R ome Statute of the Inter national Criminal Court

(ICC) Doc A ssembly/AU/13(XIII) (1–3 Ju ly 2009) at para 10 and Dec ision on the Implement ation of the

Assembly Decisions on the International Criminal Court, Doc Ex.Cl/670(X IX), contained in A ssembly/AU/

Dec.366(X VII)(30 June–1 July 2 011) at para 6. For further read ing on the relationship bet ween the

ICC and AU/Africa a nd the AU’s decision to not cooperate w ith the ICC, see, eg , T Murithi ‘ The

African Un ion and the Internationa l Criminal C ourt: An Embattled R elationship’ (2013) 8 Institute for

Justice and Reconciliation Policy Brief 1–9; M du Plessis , T Maluwa & A O’Reilly Afr ica and the International

Criminal Court (2013), avai lable at https://www.chathamhou se.org/sites/files/chathamhouse/public/

Research/Inter national%2 0Law/0713pp_iccafrica.pdf ; and Internat ional Commisson of Ju rists,

Kenya Reflections on the African Union ICC Relationship (2014), available at htt p://www.icj-ke nya.org/

dmdocuments/book s/reflections%20on%20 the%20afr ican%20un ion%20icc%20rel ationship.pdf. It

is worth noti ng that the tens ion between the Af rican states an d the ICC in relation t o al-Bashir h as

resulted in t he ICC ‘threatening to refer t he matter to the UN Secur ity Council’. See ‘ICC Thre atens

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African states that are parties to the Rome Statute in a difficult position. They

have obligations towards the AU that they must comply with, or risk sanctions;

while at the same ti me they have oblig ations under the Rome Statute to cooperate

with the ICC in the investigation and prosecution of international cr imes.15

The Kenyan government, for example, found itself in exactly this position

when President al-Bashir, against whom two arrest warrants have been issued

by the ICC,16 visited its country in 2010. The government did not arrest hi m on

the basis that it had to balance its obligations towards the AU with those towards

the ICC. Kenya’s preference for compliance with its AU obligations resulted in

non-compliance with its obligations under the Rome Statute: a position that was

endorsed by the AU.17

The South African government was in a similar position when al-Bashir

visited the country in 2015. The government did not arrest him, primarily on

the basis of al-Bashir’s incumbent Head of State immun ity, and he subsequently

left the country.18 This was done in the face of two interim High Court orders

prohibiting al-Bash ir from leaving South Africa and direc ting the government ‘to

take all necessary steps to prevent him from doing so’;19 and one further High

Court order of the Full Bench stating that the government’s failure ‘to take steps

to arrest and/or detain’ al-Bashir was in contravention of the Constitution and

thus invalid. T he second order also required t he government forthwith ‘to take all

reasonable steps’20 to arrest and detain al-Bashir, pending a formal request from

to Refer al-Bash ir case to UN’ Leg albrief (22 Februar y 2017), available at http://legalbrief.co.za/diar y/

legalbrief-afric a-new/story/icc-threatens-to-refer -al-bashir- case-to-un/pdf.

15 These conf licts are disc ussed in Part C.3 . See also M du Plessis & C Gevers ‘ Balanci ng Competing

Obligati ons: The Rome Statute and AU Decisions’ (2011) ISS Paper 225, 2–3.

16 ICC Pre-Trial Chamber I i ssued the arrest warrants a fter it considered that ‘there are r easonable

grounds to bel ieve that Omar al-Bashi r is crimi nally responsible a s an indire ct perpetrator, or as an

indirec t co-perpetr ator’ for crimes ag ainst human ity and war cr imes (in rel ation to the fi rst arrest

warrant issued on 4 M arch 2009) and t hree counts of genocide (i n relation to the second ar rest warrant

issued on 12 July 2010). See, gene rally, Prosecutor v Omar Ha ssan Ahmad al-Bashir (Warrant of Ar rest for

Omar Hassan Ahmad al-Ba shir) ICC-02/05- 01/09-1 (4 March 2009) PT Ch I; a nd Prosecutor v Omar

Hassan Ahmad al-Bashir (Second Decis ion on the Prosecution’s Applic ation for a Warrant of Arre st)

ICC-02/05-01/09-94 (12 July 2010) PT C h I.

17 See du Plessis & Gever s (note 15 above) at 3.

18 The govern ment has subsequently st ated in its Instr ument of Withdrawa l from the Rome

Statute that it ‘ was faced with the conf licting oblig ation to arrest President al-B ashir under the Rome

Statute, the obl igation to the AU to grant i mmunity in ter ms of the Host Agreement, and th e General

Convention on the Pr ivileges and Immu nities of the Organ ization of African Unit y of 1965 as well as

the obligat ion under customary inter national law wh ich recognises the immu nity of sitti ng heads of

state’. Instru ment of Withdrawal (note 11 above) at 2.

19 Minister of Justice a nd Constitutional Development and Othe rs v Southern Africa Litigatio n Centre and Others

[2016] ZASCA 17 (SC A), 2016 (4) BCLR 4 87 (SCA), [2016] 2 All SA 365 (S CA), 2016 (3) SA 317 (SCA)

(‘al-Bashir’) at para 5 ( Reproduces the High Cou rt orders).

20 Ibid at para 6. For f urther detai ls on this see MJ Ventura ‘ Escape From Johannesburg? Suda nese

President Al-Bas hir Visits South Afric a, and the Implicit Removal of Head of St ate Immunity by the

UN Secur ity Council i n light of Al- Jedda’ (2 016) 13(5) Journal of International Criminal Justice 995, esp

1001–10 05.

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