On 28 February 2017, the South African-German Centre for Transnational Criminal Justice (‘Centre’) launched the book: ‘The African Criminal Court: A Commentary on the Malabo Protocol edited by Professor Gerhard Werle and Dr. Moritz Vormbaum. The keynote lecture was held by Professor Dire Tladi, University of Pretoria, one of the contributing writers in the book, at the Law Faculty, University of the Western Cape. The book is volume 10 of the International Criminal Justice Series published by TMC Asser Press. The launch was attended by several guests including the Dean of the Law Faculty of the University of the Western Cape, the Directors of the Centre, Professors from the University of Cape Town and Stellenbosch, LLM and PhD students of the Centre and staff of the Law Faculty.
The history of the book dates back to 2011 when a student of the LLM programme wrote a thesis on the idea of establishing an African Criminal Court. In 2014 when the African Union, adopted the Malabo Protocol, which aims to empower the African Court of Justice and Humans Rights with jurisdiction over international crimes, the Centre thought to comment on it, which culminated into the Berlin summer school symposium in 2015 that hosted presentations which form content of the book. The approach of the book is to avoid a ‘friend or foe approach’ to the Malabo Protocol, it looks into the actual content of the Protocol, it analyses, among others, the definition of crimes and the controversial immunity clause as well as the proposed Court’s relationship with the International Criminal Court (ICC). The book also includes annexures of materials related to the African Criminal Court.
Key Note Address by Professor Dire Tladi
Following the brief introductory remarks on the African Criminal Court by the Director of the Centre, Professor Werle, and a short introduction of the keynote speaker by Co-ordinator of the Centre Dr. Vormbaum, Prof Tladi started his address by commenting on recent and unfolding events around international criminal justice. Tladi framed his lecture on three issues of particular interest in debates on Africa and the ICC from a South African context. These include the alleged ICC bias against African States, immunities under international law as well as the constitutional law impasse on whether or not South Africa needs a parliamentary approval to leave the ICC. All other questions that arise in the context of the Africa v ICC debate according to Tladi fall essentially within these three subjects.
Bias
According to Tladi, the claim that the AU is biased is often based on statistics. The contention is that one has only to look at the nine situations before the ICC to make a determination on whom it targets. Those who support the ICC counter this claim also by referring to statistics. The argument here is that most of these situations are self-referrals, thus claims of bias against African States are unfounded. The ICC, in fact, claims that in other situations in which it is expected to act, the court does not have jurisdiction. Tladi argued that both positions are problematic. In the former argument, he noted that anti-ICC rhetoric in Africa arose after 2008 even though earlier than 2008 all situations before the ICC were from Africa. This gives rise to speculation that perhaps this is a dress up reason for the discontent with the ICC. According to Tladi, the latter argument does not stand either because it is not true that the ICC does not have jurisdiction in situations in which it would otherwise wish to act. Situations in Afghanistan or in Palestine were examples of these. However, the ICC had only taken extremely long drawn preliminary investigations, which were yet to be concluded in both situations. Thus Tladi argued that the claim of bias was actually an issue of power politics rather than skewed numbers. The AU would like to see the ICC go after powerful hegemonies, examples are the US and its allies. However, Tladi noted that while the ICC might desire to prosecute nationals of these countries, it is an overtly difficult political issue.
Immunities under International Law
The ICC has had occasion to deliberate over a number of cases on the failure to arrest President Omar Hassan Ahmed Al Bashir. South African domestic courts have two decisions on the issue. Of the total courts involved, only one court was correct on its interpretation of international law according to Tladi. The approach in both those cases basically has two strands. The first aspect emanate from the Malawi and Chad strand when they found themselves in the position South Africa found itself, with Al-Bashir in their territory and them failing to arrest him. The ICC found that both countries had the obligation to arrest him under Article 27 of the Rome Statute because there was no immunity before the ICC. The problem with this reasoning according to Tladi is that Article 27 speaks about immunity before the ICC, not immunity before the Malawian authorities. The Court he argued, had essentially merged these two issues and concluded that because Al-Bashir does not have immunity before the ICC, he lacked the same under Malawian law. The ICC completely ignored the fact that the Rome Statute itself recognises the possibility of immunity under customary international law and essentially provides that the court should not request cooperation if it would violate international law.
The ICC again had occasion to settle the same issues in the Democratic Republic of Congo (‘DRC’) case, needless to say, it came to the same conclusion; i.e., it decided that the DRC was in violation of its cooperation obligations in failing to arrest Al Bashir while he was in that country. However, in the DRC case, the Court essentially reversed itself completely and found that in fact, as a general point of departure, a head of state of a non-party state would ordinarily enjoy immunity under the Rome Statute. However, this is dubious because under the Rome Statute any accused does not have immunity before the ICC, thus this decision also was misguided according to Tladi. The question then was whether there is a legal duty for third states to arrest Al Bashir. Here, the Court decided that even though Bashir ordinarily would have had immunity before the ICC, he could not enjoy immunity in casu because his arrest arose in the context of the UNSC referral and because Sudan had a duty to cooperate. However, the UNSC resolution on Sudan does not reflect this position according to Tladi. Interestingly, even though the ICC came to the same conclusions on the facts in the Malawi and Chad cases as well as in the DRC case, the reasoning in both is inconsistent, in fact exclusively.
The High Court in Pretoria, in turn, rendered an even more problematic decision on 23rd June 2015 in that its reasoning merged the problems in all the other cases. However, Tladi opined, the Supreme Court of South Africa had come to a right conclusion as far as the interpretation of international law was concerned. It found that there was an international law duty not to arrest Al Bashir. Its point of departure, however, was that this did not matter because the South African domestic law required his arrest. Tladi then concluded that in his opinion there was no duty under international law for South Africa to arrest Al Bashir. It is important to note that there will always be a conflict of obligations as soon as Al Bashir lands in an ICC member state and these are some of the impasses that are inherent in international law.
Constitutional Law and Parliamentary Approval
On the question whether or not South Africa can withdraw from the ICC without the approval of the South African parliament, Tladi opined that it makes little sense that the South African government did not seek parliamentary approval to leave the ICC simply because it would not be difficult to get such approval. The argument essentially in the case was that since parliament approved ratification of the Rome Statute, it should approve cancellation of the same. However, Tladi argued that this does not necessarily have to be the position. He was of the opinion that parliamentary approval for leaving the ICC was not necessary because approval did not imply that parliament obliged the executive to become part of the treaty. Parliamentary approval merely gave permission to exercise a choice to become part thereof. Thus it would not make logical sense that the executive seek approval of parliament to leave the ICC.
It is worth noting that, on 7 March 2016, the South African government had revoked its withdrawal notice from the ICC.
Status Quo
There will be a hearing in The Hague on the 7th April 2017 on whether or not South Africa violated its obligations in its failure to arrest Bashir. Tladi preempted that the ICC would come to the same conclusion as it had consistently done in all Bashir matters. Secondly, he communicated that the South African government was contemplating on whether or not to appeal the decision of the Pretoria High Court. However, if this contemplation was based on legal considerations only, Tladi recommended that this would not be an ideal solution. On the other hand, if the government does not appeal, it means that the order of the court will be executed. Parliament will likely pass approval of the process to leave before the Supreme Court gets the opportunity to deliberate on an appeal. It thus seems futile to launch an appeal.
Tladi’s address ended with a question and answer session in which he emphasised that the problems within the ICC are not new, they are problems inherent in international institutions like the United Nations. However, this does not necessarily imply that the remedial action is to leave these institutions but rather to work out these problems within the institution itself.
Written by Thato Toeba
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