It came as quite the surprise. To be sure, observers of South Africa’s relationship with the International Criminal Court (ICC) fully expected that the Court’s Judges would eventually find that Pretoria had failed to cooperate in arresting and surrendering Sudanese President Omar al-Bashir to The Hague when he visited in 2015. But few could have guessed that the Court’s Judges would decide that no further action was necessary, that South Africa would not be referred to either the United Nations Security Council nor the ICC’s Assembly of States Parties (ASP) for additional sanction.
Some view this decision as a betrayal of justice, a finding of criminality without punishment, and a legally precarious proposition. The most cogent and eloquent critic of the ruling, Angela Mudukuti, has argued that “it may do the ICC more harm than good as far as being taken seriously as a legal institution”. In this post, I will argue that the ICC’s decision was, in fact, good politics and law, and that it remains unclear, at best, whether it will hurt the institution.
Firstly, the core of South Africa’s concerns with the ICC remains unsettled. This is far too often and too easily overlooked. Human rights and international justice advocates rightly want to see al-Bashir held to account for atrocities committed in Darfur. However, while South Africa clearly had obligations to arrest Bashir (which was made clear in successive court rulings in the country), it is not clear whether ICC member-states have an obligation to do away with the immunity of heads of state of non-member states like al-Bashir of Sudan. Even when the UN Security Council is involved and refers a non-member state of the ICC to the Court, the legal consequences of such a referral are debatable. This debate is often caricatured as one between proponents of justice and advocates of impunity. But the legal scholars and diplomats concerned with the legal status of head of state immunity of non-member states are not endorsing impunity. They are recognizing a reality: that states and courts have been purposefully ambivalent on this issue and it thus remains unsettled. It does not push the accountability ball forward to neglect this fact. It would be better, as that some observers (including myself) have previously argued, to refer this issue to the International Court of Justice.
Second, a concern among critics of the ICC’s ruling is that a “message has been sent to all states parties: non-compliance has no consequences.” But is it really the case that South Africa has faced no consequences? While South Africa has not been punished or sanctioned by the ICC, it has faced numerous consequences, both domestically and internationally as a result of its decision to host al-Bashir. Pretoria has had to explain itself to the international community and to its own citizens on innumerable occasions and do so very publicly. It has also had to muster legal reasons for its actions.
Indeed, an all-too-apparent consequence is that South Africa has engaged the Court on the issue of head of state immunity. The form and substance of that engagement will never satisfy those who only see one outcome as appropriate: full legal compliance from Pretoria, punishment of the South African government, and the surrender of al-Bashir to the ICC. And fair enough. But what South Africa has done is, nonetheless, engage to the ICC throughout this process. As Allan Ngari rightfully points out: “South Africa has engaged constructively with the ICC, proposing procedures that states parties should take when consulting with the court on cooperation requests.” Moreover, part of the reasoning of the Judges in not referring South Africa to the ASP or Security Council was based on their acknowledgement of South Africa’s positive engagement with the Court. That can’t be said for many, indeed any, member-states that have previously hosted al-Bashir. Continue reading