South Africa told the International Criminal Court (ICC) it did not have a duty to act on an ICC arrest warrant for Sudan’s President Omar al-Bashir because Sudan is not a member state of the ICC.
Dire Tladi argued further on Friday that as a member state of the ICC, South Africa could not be compelled to arrest a head of state of a country that is not a member of the ICC because that person enjoyed immunity under customary international law.
Tladi made submissions before Pre-Trial Chamber II on behalf of the government of South Africa. He is a special adviser to South Africa’s Minister of International Relations and Cooperation.
He made his arguments during a hearing that Pre-Trial Chamber II had called to listen to submissions on whether the chamber should refer South Africa to the ICC’s membership, formally known as the Assembly of State Parties, for not arresting al-Bashir when he was in South Africa in June 2015. The chamber also heard whether South Africa should be referred to the United Nations Security Council on the same issue.
Pre-Trial Chamber II had ordered the hearing because the chamber was alerted to al-Bashir’s visit to South Africa for a regular African Union meeting of heads of state and government in June 2015.
On June 13, 2015, Cuno Tarfusser as the Single Judge of Pre-Trial Chamber II ruled “it is plain” that South Africa is obliged to arrest and surrender al-Bashir.
South Africa did not arrest al-Bashir, an act that was challenged in South Africa’s courts as well. There are two outstanding arrest warrants for al-Bashir, one issued in March 2009 and a second one issued in July 2010.
In its December 8 scheduling decision, Pre-Trial Chamber II directed written submissions to be filed by March 17. South Africa and the prosecution filed their submissions on March 17. The chamber also gave leave to Southern Africa Litigation Centre to file observations as a friend of the court.
On Friday, senior trial lawyer Julian Nicholls argued on behalf of the prosecution that South Africa had an obligation to arrest al-Bashir and it failed to do so. Nicholls said South Africa’s failure to arrest al-Bashir was not because South Africa could not do so but because it disagreed with the decisions of the court.
“This is not say that the decisions of the court are made by infallible judges. Of course decisions can be tested. They can be challenged. They can be litigated. But what can’t be accepted is a State Party simply fails to comply because it disagrees with the law,” said Nicholls.
“This was a grave act of non-compliance,” said Nicholls. “The court’s going to be unable to carry out its most basic function.”
When he began his submissions, Nicholls said the chamber “should find that under all the circumstances South Africa did not comply with its obligations.”
“And yes given the gravity … you should make a formal finding and refer the matter both to the Assembly of State Parties and the Security Council.”
For his part, Tladi made a series of points based on how to interpret Security Council Resolution 1593 that referred the Sudan case to the ICC. He said the resolution was only explicit about the duty and obligations of Sudan in relation to case at the ICC concerning the conflict in Sudan’s Darfur region.
“It is noteworthy that the Security Council could have placed an obligation to cooperate on all parties. It didn’t. As such the resolution creates no rights and no obligations on states other than Sudan,” said Tladi.
He argued that on the matter of arresting al-Bashir different pre-trial chambers of the ICC had either emphasized the Security Council resolution or articles in the ICC’s founding law, the Rome Statute. He said it “would be unfair to suggest that the law is clear, that there is no uncertainty, that there is no ambiguity.”
Later Tladi said, “The jurisdiction of the court [ICC] is not at issue. What is at issue is the duty to cooperate.”
He said a little later on, “Our submission is there is and was no duty on South Africa to arrest Mr. al-Bashir.”
“In the light of the above, we pray that the chamber find that South Africa did not act contrary to its obligations and that this matter not be referred to the Assembly of State Parties or United Nations Security Council,” said Tladi.
He said that if the chamber concluded differently, “South Africa requests the chamber to grant it leave to appeal to the Appeals Chamber.”
After Tladi spoke, Nicholls first made submission on behalf of the prosecution. A legal adviser to the Office of the Prosecutor, Rod Rastan, then spoke after Nicholls.
Rastan addressed the question of immunity of heads of state before the ICC. He said South Africa’s submission meant that, “unless a Head of State found himself on the premises of the ICC, perhaps on a courtesy visit, state parties would be powerless to give effect to the court’s decision.”
At the end of the hearing, Judge Chang-ho Chung asked the South African delegation a question.
“Would you elaborate what happened between the 28th of May  and 12th of June  in the South Africa government regarding the decision-making process for consultation [with the ICC]?”asked Judge Chang-ho.
The judge was referring to the time between when the ICC Registry wrote to South Africa in May 2015 to remind it of its obligations to arrest al-Bashir if he visited South Africa and the time South Africa asked to consult the ICC under Article 97 of the Rome Statute in June 2015.
Sandea De Wet answered that though South Africa was hosting the AU summit of June 2015, South Africa did not control who would attend or not, nor did the confirmations of who would attend come in early. De Wet is the Chief Law Adviser in South Africa’s Department of International Relations and Cooperation. She was the head of South Africa’s legal team during Friday’s hearing.
“We want to disperse with the innuendo that South Africa waited until the very last minute to consult the court. Indeed it was a worry for South Africa,” De Wet told the court. She said that South Africa only received confirmation that al Bashir would attend the AU summit after he was already in the country.
“The indication that he would come was on the table, off the table. This does not mean that we were not worried. Government wheels turn slowly,” De Wet said.
“That is where we found ourselves on the eve of 12th June of Friday and that is when the events unfolded,” she concluded.
Judge Chang-ho asked one more question and then Presiding Judge Cuno Tarfusser called the hearing to a close. He said Pre-Trial Chamber II will make its decision before the ICC’s summer recess. He also said the chamber would make its decision in open court, and all parties would be informed well in advance so that they could attend that hearing.