South Africa's Dilemma: Immunity Laws, International Obligations and The Visit by Sudan's President Omar Al Bashir

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South Africa’s Dilemma: Immunity Laws, International Obligations and the

Visit by Sudan’s President Omar Al Bashir
Article · January 2017
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Ntombizozuko Dyani-Mhango
University of the Witwatersrand
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Compilation © 2017 Washington International Law Journal Association
SOUTH AFRICA’S DILEMMA: IMMUNITY LAWS,

INTERNATIONAL OBLIGATIONS, AND THE VISIT BY
SUDAN’S PRESIDENT OMAR AL BASHIR
NTOMBIZOZUKO DYANI-MHANGO
Abstract: President Al Bashir has avoided the International Criminal
Court (“ICC”) for seven years and has been able to travel to both states that are party
to the Rome Statute and states that are not without any consequences. The existence
of customary international law immunities makes it difficult for the ICC to be able to
discharge its duties without the cooperation of states parties. The silence of the
Security Council and its failure to clarify Security Council Resolution 1593 (2005) on
whether the resolution indeed removes Sudan’s immunities in order for President Al
Bashir to be arrested and surrendered to the ICC equally makes the ICC’s job
difficult. This article examines whether there is a justification for South Africa’s
failure to abide by its obligations under the Rome Statute when it did not secure and
arrest President Al Bashir. This will be done against the backdrop of the ICC
decisions on the obligations of states parties to the Rome Statute to cooperate. The
article also analyzes the South African High Court and the Supreme Court of Appeal
judgments with regard to South Africa’s domestic and international obligations .
I. INTRODUCTION AND BACKGROUND

In January 2015, the South African government agreed to host the
African Union Summit to be held in June of the same year.1 This meant
the Heads of State and other senior government officials would attend
this Summit. Amongst those who would attend was Sudan’s President
Omar Hassan Ahmad Al Bashir, who is wanted by the International
Criminal Court (“ICC”).2 He is alleged to have committed international
crimes which include five counts of crimes against humanity (murder,
extermination, forcible transfer, torture, and rape); two counts of war
crimes (intentionally directing attacks against a civilian population or
against individual civilians not taking part in the hostilities and pillaging);

LL.B, LL.M (Western Cape), SJD (Wisconsin-Madison), Associate Professor of International
Law, School of Law, University of the Witwatersrand, Johannesburg, South Africa. A draft version of
this article was presented at 1st Law and Society in Africa Conference, Dynamism, Liminality, Reality?
Policy, Research and the Law in an Afropolitan Era, Cape Town, South Africa, co-hosted by the
Centre for Law and Society, University of Cape Town and Law and Society Association, Dec. 2016;
and at the Law and Society Annual Meeting, at the Delta: Belonging, Place and Visions of Law and
Social Change, New Orleans, Louisiana, USA, May 2016. I would like to thank the Wits Programme
in Law, Justice & Development for funding to attend the Annual Meeting in New Orleans, and the
organizers of the 1st Law and Society in Africa to attend and present in Cape Town. I am grateful to
the editors of this journal for guidance and to Mtende Mhango for being a sounding board for my
ideas. All errors are mine.
1
Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development 2015
(5) SA 1 (GP) (S. Afr.).
2
The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09; The Prosecutor v. Omar
Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, Warrant of Arrest, (Mar. 4, 2009); The Prosecutor v.
Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest, (July 12, 2010). See
also The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-73, Judgment on Appeal,
(Feb. 3, 2010).
536 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 26 NO. 3
and three counts of genocide (genocide by killing, genocide by causing

serious bodily or mental harm, and genocide by deliberately inflicting on
each target group conditions calculated to bring about the group’s
physical destruction).3
Sudan is not a party to the Rome Statute, which established the

4
ICC. Ordinarily, the ICC is expected to investigate and prosecute
persons for matters that come from states that have ratified the Rome
Statute (“states parties”) as rules of international law so require.5
However, states parties to the Rome Statute included a provision which
gives the United Nations (“UN”) Security Council the power to refer a
situation that threatens international peace and security to the ICC for
investigation and possible prosecution.6 This provision serves as a
jurisdictional trigger mechanism for the ICC to investigate and prosecute
nationals of a non-party state to the Rome Statute.7 This means that
situations originating from non-party states to the Rome Statute may be
investigated and prosecuted by the ICC as evidenced by the situations in
Darfur, Sudan,8 and Libya.9 In the case of Sudan, the Security Council
referred the Darfur situation to the ICC Prosecutor10 based on the
recommendation of the International Commission on Violations of
International Humanitarian Law and Human Rights Law in Darfur.11 The
3
Id.
4
The Rome Statute was adopted by delegates from around the world at UN conference of
Plenipotentiaries on Establishment of the ICC, Rome, Italy, June 15-July 17, 1998. See generally,
Phillipe Q.C. Kirsch & Darryl Robinson, Reaching Agreement at the Rome Conference, in THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 1 (Antonio Cassese, Paola Gaeta
& John RWD Jones eds., 2002).
5
See Vienna Convention on the Law of Treaties (with annex) art. 34, opened for signature May
23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].
6
Rome Statute of the International Criminal Court, (Rome, 17 July 1998) UN Doc.
A/CONF.183/9 of 17 July 1998, entered into force 1 July 2002 [hereinafter Rome Statute]. Art. 13 of
the Rome Statute reads as follows:
‘The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if:
(a) A situation in which one or more crimes appears to have been committed is referred
to the Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by the Security Council Acting under Chapter VII of the Charter of the
United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance
with article 15.’
7
On different trigger mechanisms for the exercise of ICC jurisdiction, see Mahnoush H.
Arsanjani, The Rome Statute of the International Criminal Court, 93 AM. J. INT'L L. 22, 26-29 (1999).
8
Situation in Darfur, Sudan ICC-02/05 (June 2005). See also The Prosecutor v. Omar Hassan
Ahmad Al Bashir, ICC-02/05-01/09.
9
Situation in Libya, ICC-01/11 (March 2011). See also The Prosecutor v. Saif Al-Islam
Gaddafi, ICC-01/11-01/11.
10
See S.C. Res. 1593, para. 1 (March 31, 2005).
11
This Commission was established by the UN Secretary-General on the request by the Security
Council that the Secretary-General ‘rapidly establish an international commission of inquiry in order
June 2017 South Africa’s Dilemma 537
International Commission of Inquiry established that the government

forces of Sudan and the militias committed widespread acts which could
amount to crimes against humanity. These acts included rape and other
forms of sexual violence, destruction of villages, torture, killings of
civilians, and forced pillages.12 Based on this report by the International
Commission of Inquiry, the Security Council determined that there was a
continuous threat to international peace and security in Darfur. These
findings caused the Security Council to refer the situation to the ICC
acting under Chapter VII of the UN Charter as evidenced by UN Security
Council Resolution 1593.13
The ICC Prosecutor investigated the Darfur situation to determine

whether there was a reasonable basis to proceed with the investigation.14
Once the Prosecutor was satisfied that there was a reasonable basis to
proceed with the investigation, an application was made to the ICC Pre-
Trial Chamber15 to issue a warrant for President Al Bashir’s arrest.16
After examining the material brought by the Prosecutor, the Pre-Trial
Chamber was satisfied that “there are reasonable grounds to believe that
immediately to investigate reports of violations of international humanitarian law and human rights
law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to
identify the perpetrators of such violations with a view to ensuring that those responsible are held
accountable’. See S.C. Res. 1564, para. 12 (Sep. 18, 2004). See also Rep. of Int'l Comm'n of Inquiry on
Darfur to the UN Secretary-General, at 5, U.N. Doc (Sep. 18, 2004) (recommending that the Security
Council refers the Darfur situation to the ICC as per article 13(b) of the Rome Statute as ‘the alleged
crimes that have been documented in Darfur [met] the thresholds of the Rome Statute). The Report of
the Commission is available at <www.un.org/news/dh/sudan/com_inq_darfur.pdf> [hereinafter Rep. of
Int'l Comm'n on Darfur].
12
See Rep. of Int'l Comm'n on Darfur at 3.
13
See S.C. Res. 1593, supra note 10 pmbl.The Security Council has the primary responsibility
to deal with issues that threaten international peace and security. See U.N. Charter art. 39 (stating that
"[t]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken … to
maintain or restore international peace and security").
14
See Rome Statute, supra note 6 at art. 53. See also The Office of the Prosecutor, Policy Paper
on Preliminary Examinations, para. 5 (Nov. 2013) (describing the relevant Rome Statute
principles, factors and procedures applied by the Office in the conduct of its
preliminary examination activities’) https://www.icccpi.int/items Documents/OTP%20Preliminary%20
Examinations/OTP%20%20Policy%20Paper%20Preliminary%20Examinations%20%202013.pdf.
15
Art. 34(b) of the Rome Statute, supra note 6 stipulates that the ICC consists of three judicial
divisions: the Pre-Trial Division or Chambers; the Trial Division; and the Appeals Division. On the
number of judges per chambers, see art. 39 of the Rome Statute. The role of the Pre-Trial Chamber is
to deal with preliminary issues such as deciding whether or not there is sufficient evidence to go on
trial and to confirm charges and to also issue summons or arrest warrants. See Rome Statute, arts. 56 -
61.
16
See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision on the
Prosecution's Application for a Warrant of Arrest (Mar. 4, 2009), https://www.icc-
cpi.int/CourtRecords/CR2009_01517.PDF [hereinafter Decision on Prosecution's Application]. See
also Rome Statute, supra note 6 at art. 58(1) which, in part, states that "[a]t any time after the initiation
of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant
of arrest of a person, if having examined the application and the evidence or other information
submitted by the Prosecutor, it is satisfied that (a) [t]here are reasonable grounds to believe that the
person has committed a crime within the jurisdiction of the Court."
Omar Al Bashir is criminally responsible . . . as an indirect perpetrator or

as an indirect co-perpetrator for those war crimes and crimes against
humanity for which the Chamber has already found in the present
decision that there are reasonable grounds to believe that they were
directly committed.”17 The Pre-Trial Chamber subsequently issued the
arrest warrant against President Al Bashir.18 The Pre-Trial Chamber also
requested the states parties and non-party states cooperate with the ICC
by arresting and surrendering President Al Bashir to the ICC if he was
apprehended in their respective territories.19
Upon learning that President Al Bashir was in South Africa, the

Southern African Litigation Centre20 approached the High Court of South
Africa21 to ensure that the South African government would abide by its
17
Decision on Prosecution's Application, at para. 223. See also Id. at para. 28, where the Pre-
Trial Chamber outlines the questions to be satisfied by the Prosecutor before the application for the
issue of an arrest warrant is granted.
18
The first arrest warrant against President Al Bashir was issued on March 4, 2009 (ICC,
Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, March 4, 2009) and the
second arrest warrant (ICC, Second Warrant of Arrest for Omar Hassan Al Bashir, ICC-02/05-01/09-
95, July 12, 2010) was issued on July 12, 2010 after the Prosecutor successfully appealed to the
Appeals Chamber to include the charge of genocide when the initial arrest warrant did not include it.
See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-21, Decision on the Prosecutor’s
Application for Leave to Appeal the Decision on the Prosecution’s Application for a Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, (June 24, 2009). See also Prosecutor v. Omar Hassan Ahmad
Al Bashir, ICC-02/05-01/09-94, Second Decision on the Prosecution’s Application for a Warrant of
Arrest (July 12, 2010) (where the Pre-Trial Chamber included the charge of genocide) [hereinafter
Second Decision].
19
See Second Decision, where the Pre-Trial Chamber instructed the ICC Registry to ‘prepare a
request for cooperation seeking the arrest and surrender of Omar Al Bashir for the counts contained in
both the first and the second warrant of arrest’. See generally Rome Statute, supra note 6 at art. 87 on
requests for cooperation.
20
A National Governmental Organization "which promotes and advances human rights and the
rule of law in southern Africa primarily through strategic litigation support and capacity building."
SOUTHERN AFRICA LITIGATION CENTRE, www.southernafricanlitigationcentre.org/about/ (last visited
Aug. 2016).
21
S. AFR. CONST., 1996 § 166 provides for the hierarchy of the South African courts as follows:
The courts are—
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Court of South Africa, and any high court of appeal that may be
established by an Act of Parliament to hear appeals from any court of a status
similar to the High Court of South Africa;
(d) the Magistrates’ Courts; and
(e) any other court established or recognized in terms of an Act of Parliament,
including any court of a status similar to either the High Court of South Africa
or the Magistrates’ Courts.
The Constitutional Court is the highest court in South Africa and may sit as a court of first
instance or last instance on constitutional matters and any matter that is of public interest. The
Constitutional Court also has exclusive jurisdiction in certain matters such as determining the
constitutionality of the conduct of the president of South Africa. See § 167. The Supreme Court of
Appeal decides on appeals from the high courts and may deal deal with issues connected with appeals
as determined by legislation. See § 168. The high court may deal with constitutional issues except
those that are within the exclusive jurisdiction of the Constitutional Court, or which the Constitutional
Court has decided to hear as the court of first instance. See § 169.
international obligations, and arrest and surrender President Al Bashir to

the ICC.22 Meanwhile on the request of the ICC Prosecutor, the Pre-Trial
Chamber also clarified South Africa’s position with regard to its
obligations under the Rome Statute.23 It is important to note that once
the ICC issued the arrest warrant, the African Union (“AU”) adopted a
series of resolutions instructing member states not to comply with the
ICC’s request that the states parties cooperate by arresting and
surrendering President Al Bashir to the ICC.24 The Pre-Trial Chamber
held that there was no dilemma for South Africa as it is a state party to
the Rome Statute, and must therefore abide by the Statute’s obligations.
In addition, the Sudanese situation was referred to by the Security
Council Resolution 1593, which is binding upon all states.25 While the
South African government tried to delay the proceedings by asking for
more time, the High Court made an order that President Al Bashir not be
allowed to leave South Africa.26
It is well-known that President Al Bashir was able to leave South
Africa’s territory before the judgment was handed down by the High
Court, which required South Africa to arrest and surrender President Al
Bashir to the ICC.27 The government of South Africa appealed the
judgment of the High Court to the Supreme Court of Appeal (“SCA”).28
The SCA dismissed the appeal and held that South Africa failed to act
consistently with its obligations to arrest and surrender President Al
Bashir to the ICC at both the international and domestic levels.29 The
22
(5) SA 1 (GP) para. 2.
23
The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-242, (June 13, 2015).
Decision following the Prosecutor’s request for an order further clarifying that the Republic of South
Africa is under the obligation to immediately arrest and surrender Omar Al Bashir.
24
See AU Assembly, Decision on the ICC, para. 3 Assembly/AU/Dec. 590 (XXVI), (Jan. 30-31
2016), Addis Ababa, (commending South Africa ‘for complying with the Decisions of the Assembly
on non-cooperation with the arrest and surrender of President Omar Al Bashir of The Sudan and
Decides that by receiving President Al Bashir, [South Africa] was implementing various AU Assembly
Decisions on the warrants of arrest issued by the ICC against President Bashir and that South Africa
was consistent with its obligations under international law.’)
25
Id. at para. 5.
26
See also SALC v Minister of Justice, at para. 36.
27
See Norimitsu Onishi, Omar al-Bashir, Leaving South Africa, Eludes Arrest Again, N.Y.
TIMES, June 15, 2015, http://www.nytimes.com/2015/06/16/world/africa/omar-hassan-al-bashir-
sudan-south-africa.html?_r=0; Tara Penny, Barry Bateman & Jean-Jacques Cornish, Omar Al-Bashir
Defies Court Order and Leaves South Africa, EYE WITNESS NEWS, June 15, 2015,
http://ewn.co.za/2015/06/15/Omar-alBashir-to-land-in-Sudan-this-evening; Don Melvin & Elliot C.
McLaughlin, Sudan's Leader Leaves South Africa Before Court Orders Arrest, CNN, June
15, 2015, http://www.cnn.com/2015/06/15/africa /south-africa-summit-icc-omar-al-bashir-arrest/.
28
Minister of Justice and Constitutional Development v. Southern African Litigation Centre
2016 (3) SA 317 (SCA) (S. Afr.).
29
Id. at para. 107 and 113, where the SCA altered the High Court Order as follows: ‘The
Conduct of the Respondents in failing to take steps to arrest and surrender to the [ICC], the President
of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend
the 25th Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of
government of South Africa appealed the SCA judgment to the

Constitutional Court,30 but later withdrew the appeal after the
government’s decision to exit the Rome Statute.31 One reason advanced
by the South African government for the exit is that “South Africa found
itself in the unenviable position where it was faced with conflicting
obligations: obligations contained in the Rome Statute which are in
conflict with customary international law pertaining to immunity for
sitting Heads of State.”32 Therefore, being a state party to the Rome
Statute compromised South Africa’s “efforts to promote peace and
security on the African Continent and to play an essential part in
international peacekeeping missions in Africa and in related peace
processes.”33 Subsequent to the decision to exit the Rome Statute, the
Minister of Justice and Correctional Services introduced the
Implementation of the Rome Statute of the International Criminal Court
Act Repeal Bill to South Africa’s Parliament in late 2016.34 However, in
March 2017, a notice to withdraw the repeal Bill was tendered before
South Africa’s Parliament by the Minister of Justice and Correctional
Services without any explanation.35 South Africa has been a state party to
the Rome Statute since November 27, 2000.36
the Rome Statute … and section 10 of the Implementation of the Rome Statute of the [ICC] Act 27 of
2002, and unlawful’.
30
Minister of Justice and Constitutional Development v. Southern Litigation Centre (3) S.A.
317 (SCA).
31
Michelle Nichols, SA Begins Process to Withdraw From International Criminal Court, MAIL &
GUARDIAN, Oct. 21 2016, http://mg.co.za/article/2016-10-21-south-africa-begins-process-to-withdraw-
from-the-icc (last visited Nov. 9, 2016). It is worth noting that the High Court of South Africa has
recently found that the executive branch of government of South Africa acted unconstitutional in
giving the notice of withdrawal from the Rome Statute without first getting approval from the
legislative branch of government for such approval. The high court found that the executive breached
the separation of powers for usurping the legislative powers in this regard. The executive branch was
then ordered to rescind the notice of withdrawal until the legislative process has been completed on
whether or not to withdraw from the Rome Statute. This judgment did not deal with the substantive
nature of the withdrawal, but dealt with the procedural aspect that the executive did not have the power
to withdraw from the Rome Statute without approval from the legislative branch. See Democratic
Alliance v. Minister of International Relations and Cooperation and others (Council for the
Advancement of the South African Constitution Intervening) 2017 (3) SA 212 (G.P). For analysis of
this judgment, see Hannah Woolaver, Unconstitutional and Invalid: South Africa’s Withdrawal from
the ICC Barred (For Now), EJIL Talk (Feb. 27, 2017), www.ejiltalk.org/unconstitutional-and-invalid-
south-africas-withdrawal-from-the-icc-barred-for-now/ (last visited Mar. 2, 2017).
32
See Opening Statement from T. M. Masutha, Minister of Justice and Correctional Services,
Fifteenth Meeting of the Assembly of States Parties of the International Criminal Court, The Hague,
Nov. 16-24, 2016, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/GenDeba/ICC-ASP15-GenDeba-
SouthAfrica-ENG.pdf (last visited on Apr. 2017) (unnumbered).
33
Department of International Relations and Cooperation (S. Afr.), South Africa's Withdrawal
from the Rome Statute of the International Criminal Court,
http://www.dirco.gov.za/milan_italy/newsandevents/rome_statute.pdf (undated).
34
See Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill,
B23 of 2016.
35
See Parliament of the Republic of South Africa, Announcements, Tablings and Committee
Reports, Fourth Session, Fifth Parliament, No. 33-2017, announcing that the Minister of Justice and
President Al Bashir’s visit to South Africa to attend the African

Union Summit necessitates an examination of South Africa’s immunity
laws and obligations both domestically and internationally. South Africa
has enacted at least three statutes that address immunities of Heads of
State and other senior state officials.37 South Africa plays an important
role in the African region and it is known as one of the most influential
member states of the AU.38 This is not surprising since the AU was a
brainchild of Libya’s Muammar Gaddafi, Nigeria’s Olusegun Obasanjo,
and South Africa’s Thabo Mbeki.39 It is therefore befitting to discuss the
position of the AU with regard to the ICC’s arrest warrant issued against
President Al Bashir.
I have previously analyzed the strained relationship between the

ICC and the African states.40 In the first paper I discussed whether the
ICC was targeting Africa in the aftermath of arrest warrants issued by the
ICC against two sitting presidents at the time: Al Bashir and Libya’s
Gaddafi.41 I observed that one could conclude that the ICC cannot be
viewed as targeting Africa because “African states [] voluntarily ratified
the Rome Statute and therefore the consequences that flow from such
ratification are that the ICC will prosecute Africans if African states are
Correctional Services withdrew the Bill in accordance with the Rules of the National Assembly,
https:www.parliament.gov.za/storage/app/media/Docs/atc/ed163e45-eccd-4b9e-8d11-
817d5c9820e3.pdf (last visited on Apr. 2017). See also, Siyabonga Mkhwanazi, SA will not withdraw
from ICC –Justice Minister, IOL, March 15, 2017, http:www.iol.co.za/news/politics/sa-will-not-
withdraw-from-icc---justice-minister-8194669 (last visited on Apr. 2017).
36
The States Parties to the Rome Statute, ICC, https://asp.icc-
cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statu
te.aspx (last visited on Sep. 26, 2016).
37
Foreign Immunities Act 87 of 1981; Diplomatic Immunities and Privileges Act 37 of 2001; and
Implementation of the Rome Statute of the ICC Act 27 of 2002. [hereinafter ICC Implementation Act].
38
See Jackie Cilliers, Julia Schünemann & Jonathan Moyer, Power and influence in Africa:
Algeria, Egypt, Ethiopia, Nigeria and South Africa, INSTITUTE FOR SECURITY STUDIES 14 (March
2015).
39
See Tiyanjana Maluwa, From the Organisation of African Unity to the African Union:
Rethinking the Framework for Inter-State Cooperation in Africa in the Era of Globalisation, 5 U. OF
BOTS. L. J. 15, fn 44 (2007) (observing that ‘Both Presidents Olusegun Obasanjo of Nigeria and Thabo
Mbeki of South Africa, as well as Foreign Minister Amr Mousa of Egypt, standing in for President
Hosni Mubarak, played critical roles in the debates and consultations which produced the compromise
that formed the basis for the Sirte Declaration. Their respective support for the proposed Constitutive
Act of the African Union in the Lome summit was equally critical to securing its adoption after initial
expressions of reservations by a number of delegations both at the ministerial and summit levels.
However, Ghaddafi's self-image as "the leader of Africa" cannot be ignored. Any recent visitor to
Tripoli will testify to the adornment of various major points and buildings in the city with murals and
slogans displaying or proclaiming Ghaddafi's various poses and roles as the "leader," "guide" or
"liberator" of the African continent and its people’).
40
See Ntombizozuko Dyani, Is the International Criminal Court Targeting Africa? Reflections
on the Enforcement of International Criminal Law in Africa in AFRICA AND THE FUTURE OF
INTERNATIONAL CRIMINAL JUSTICE 185-220 (Vincent Nmehielle ed., 2012); and Ntombizozuko
Dyani-Mhango, The ICC Pre-Trial Chamber’s decision on Malawi regarding the failure to arrest and
surrender President Al Bashir of Sudan: An opportunity missed, 28 S. AFR. PUB. L. 106-120 (2013).
41
Dyani, supra note 40; see also S.C. Res. 1970, para. 4-8 (Feb. 26, 2011).
unwilling and unable to prosecute.”42 I will also remind readers that the
conflict between the ICC and the AU (as the collective of the African
states) only arose once the ICC issued arrest warrants against the sitting
Heads of State. Situations such as those in Uganda,43 in the Democratic
Republic of Congo (“DRC”),44 and in the Central African Republic45
were self-referrals by the respective states.46 However, I also argue that
Africa being the only continent where heinous crimes are committed is a
legitimate question, as at the time the Prosecutor was only investigating
situations in Africa.47 Since then, the Prosecutor has been investigating
Georgia for crimes against humanity and war crimes,48 additionally
several other non-African countries are under preliminary examination.49
I conclude in that paper that if African states wish to avoid being targeted
by the ICC, they need to strengthen their judicial systems to align with
international standards to try perpetrators domestically because the ICC
operates only on a complementarity basis.50 Put differently, the ICC may
only claim jurisdiction if the state is unwilling or unable to prosecute an
alleged perpetrator for international crimes found in the Rome Statute.51
In the second paper, I scrutinized the Pre-Trial Chamber’s decision

on Malawi for failing to arrest and surrender President Al Bashir while he
attended the Common Market for Eastern and Southern Africa
(“COMESA”) Summit.52 I criticized the Pre-Trial Chamber for failing to
42
Dyani, supra note 40, at 218.
43
Press Release, International Criminal Court, President of Uganda Refers Situation Concerning
the Lord’s Resistance Army (LRA) to the ICC, (Jan. 29, 2004).
44
Press Release, International Criminal Court, Prosecutor Receives Referral of the Situation in
the Democratic Republic of Congo, (Apr. 19, 2004).
45
Press Release, International Criminal Court, Prosecutor Receives Referral Concerning Central
African Republic, (Jan. 7, 2005).
46
See Dyani, supra note 40, at 186 and the accompanying footnotes.
47
Id. at 219.
48
See Press Release, International Criminal Court, ICC Pre-Trial Chamber I Authorises the
Prosecutor to Open an Investigation into the Situation in Georgia, (Jan. 27, 2016); Situation in
Georgia, Case No. ICC-01/15/12, Decision on the Prosecutor’s request for authorization of an
investigation, (Jan. 27, 2016), https://www.icc-cpi.int/CourtRecords/CR2016_00608.PDF.
49
These include Afghanistan, Colombia, Iraq/UK, Palestine, Registered Vessels of Comoros,
Greece and Cambodia and Ukraine. This information can be easily accessed from the
ICC website. Academics, Students and the ICC, https://www.icc-cpi.int/get-involved/pages/academics-
and-researchers.aspx
50
Dyani, supra note 40, at 220. For the discussion of the complementarity principle, see
VINCENT O. NMEHIELLE, Taking Credible Ownership of Justice for Atrocity Crimes in Africa: The
African Union and the Complementarity Principle of the Rome Statute, in AFRICA AND THE FUTURE OF
INTERNATIONAL CRIMINAL JUSTICE 223 (2012); and Carol Nalule & Rachel Odoi-Musoke, The
Complementarity Principle Put to the Test: Uganda’s Experience, in AFRICA AND THE FUTURE OF
INTERNATIONAL CRIMINAL JUSTICE 243 (Vincent O. Nmehielle ed., 2012).
51
See Rome Statute, supra note 6, art 1 (read together with the Preamble to the Rome Statute
para. 10 and art 17 on the admissibility of the cases to the ICC) which provides that the ICC "shall
have the power to exercise its jurisdiction over persons for the most serious crimes of international
concern, …and shall be complementary to national criminal jurisdictions."
52
Dyani-Mhango, supra note 40, at 109. See also The Prosecutor v. Al Bashir, ICC-02/05-
01/09-139-Corr, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the
attend to the apparent conflict between articles 27(2)53 and 98(1)54 of the
Rome Statute.55 The conflict arises from article 27(2) prohibiting any
form of immunity barring the ICC from exercising its jurisdiction over
the individual claiming immunity, while article 98(1) prohibits the ICC
from forcing a state party to the Rome Statute to cooperate by arresting
and surrendering a person from a third state56 if such cooperation will
result in the state party acting against its customary international law
obligations owed to the third state.57 The Pre-Trial Chamber failed to
deal with the conflict between these two articles as it held that article
98(1) of the Rome Statute did not apply to the matter.58 I also argued that
Malawi was justified in not arresting and surrendering President Al
Bashir to the ICC because of its other obligations under customary
international law owed to Sudan, a non-party state to the Rome Statute.59
Since then, the Pre-Trial Chamber has dealt with the conflict between
articles 27(2) and 98(1) of the Rome Statute.60
In this paper I ask: Is there a justification for South Africa’s failure
to abide by its obligations under the Rome Statute when it did not secure
and arrest President Al Bashir? In other words, does the same argument
for Malawi apply to the South African situation? This paper will revisit
these arguments and examine whether they apply to the South African
situation. The paper will also analyze the High Court and the SCA
judgments on South Africa’s domestic and international obligations. This
Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with
Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, (Dec. 13,
2011), https://www.iccc-pi.int/CourtRecords/CR2011_21750.PDF [hereinafter Malawi Decision].
53
Rome Statute, supra note 6 art. 27(2) states that "[i]mmunities or special procedural rules
which may attach to the official capacity of a person, whether under national or international law, shall
not bar the [ICC] from exercising its jurisdiction over such a person."
54
Rome Statute, supra note 6, art. 98(1) states, "[the ICC] 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 [ICC] can first obtain the cooperation of that third State for the
waiver of the immunity."
55
Dyani-Mhango, supra note 40, at 108.
56
Vienna Convention, supra note 5, art. 2(1)(g) defines a third state as ‘a state not party to the
treaty.’ I use non-party state and third state interchangeably.
57
Id. at 116-119. For further reading on this issue, see also Paola Gaeta, Does President Al
Bashir Enjoy Immunity From Arrest? 7 J. INT’L CRIM. JUST. 315 (2009); Dapo Akande, The Legal
Nature of the Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J.
INT’L CRIM. JUST. 333 (2009).
58
Malawi Decision, supra note 52, at para. 43.
59
Dyani-Mhango, supra note 40, at 116-119.
60
See Prosecutor v. Al Bashir, ICC-02/05-01/09-195, Decision on the Cooperation of the
Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the
Court, paras. 28–31 (Apr. 4, 2014), https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF
[hereinafter DRC Decision] (holding that the Security Council Resolution to refer the matter to the
ICC implicitly waived any form of immunities that President Al Bashir may have under customary
international law).
will be done against the backdrop of the ICC decisions on the obligations
of states parties to the Rome Statute to cooperate with the ICC.
Part I of the article presents a brief background to the events that

led to South Africa’s dilemma caused by its failure to abide by its
obligations under the Rome Statute by virtue of being both a member of
the AU and a state party to the Rome Statute. Part II briefly discusses the
status of personal immunities entitled to Heads of State under customary
international law, while Part III discusses the Rome Statute on
immunities entitled to Heads of State from non-party states. Part III also
discusses the criticism levelled against the ICC Pre-Trial Chambers I and
II decisions on the conflict between articles 27(2) and 98(1) of the Rome
Statute. Part IV then analyzes South Africa’s legal framework on
personal immunities and the South African courts’ decisions on South
Africa’s failure to arrest and surrender President Al Bashir to the ICC.
Part IV also examines the consequences of South Africa’s attempt to
withdraw from the Rome Statute and concludes that despite such an
attempt to withdraw, South Africa would still face the consequences of
failing to arrest and surrender President Al Bashir to the ICC under the
Rome Statute.
II. INTERNATIONAL LAW ON HEADS OF STATE AND PERSONAL

IMMUNITIES FOR INTERNATIONAL CRIMES
As explained above, the tension between the AU and the ICC
stems from the barring of immunities for sitting Heads of State such as
President Al Bashir, and is further exacerbated because Sudan is not party
to the Rome Statute. This necessitates a brief discussion of immunities
entitled to sitting Heads of State. Heads of State or government and
foreign ministers (state officials) enjoy the broadest scope of immunity
from criminal jurisdiction of foreign states in general. The rationale
behind the exemption from criminal jurisdiction is two-fold: first, Head
of State immunity is premised on the concept that a state and its rulers are
one for the purposes of immunity; and second, all states are equal with
the consequence that no state may exercise judicial authority over
another.61 There is much literature about immunities in international law,
specifically, the distinction between diplomatic and sovereign
immunities, and between functional (ratione materiae)62 and personal
(ratione personae) immunities.63 Of concern in this discussion is the
61
ANTONIO CASSESE, INTERNATIONAL LAW 120 (2001).
62
Functional immunity is grounded on the notion that a state official is not accountable to other
states for acts that he accomplished in his official capacity, so such acts must therefore be attributed to
the state. See id.
63
See generally, YITIHA SIMBEYE, IMMUNITY AND INTERNATIONAL CRIMINAL LAW (2004).
personal immunities accorded to Heads of State under sovereign

immunities.
According to personal immunity, a senior state official is immune

from foreign state jurisdiction in order to guard against the violation of
state sovereignty or an interference with the official functions of a state
agent under the pretext of dealing with an exclusively private act.64
Indeed, the International Court of Justice (“ICJ”) in Arrest Warrant
Case,65 confirmed this notion:
[T]he functions of a Minister for Foreign Affairs are such that,
throughout the duration of his or her office, he or she when
abroad enjoys full immunity from criminal jurisdiction and
inviolability. That immunity and inviolability protect the
individual concerned against any act of authority of another
State which would hinder him or her in the performance of his
or her duties.66
After carefully examining state practice, the ICJ further confirmed that it
was “unable to deduce from this state practice that there exists under
customary international law any form of exception to the rule according
immunity from criminal jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs, where they are suspected of having
committed war crimes or crimes against humanity.”67 This illustrates
how personal immunity is an absolute prohibition of the exercise of
criminal jurisdiction by foreign states. “Judicial opinion and state practice
on this point are unanimous and no case can be found in which it was
held that a state official possessing personal immunity is subject to the
criminal jurisdiction of a foreign state where it is alleged that he or she
has committed an international crime.”68
The ICJ confirmed that this immunity extends even in cases
involving allegations of international crimes.69 However, the Arrest
Warrant Case also made it clear that personal immunities may be lifted in
international courts such as the ICC.70 Indeed, article 27(2) of the Rome
64
CASSESE, supra note 61, at 862.
65
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep 3.
(Feb. 14) [hereinafter Arrest Warrant Case].
66
Id. at paras. 54-55.
67
Id. at para. 58.
68
Dapo Akande, International Law Immunities and the International Criminal Court, 98 AM. J.
INT’L L. 407, 411 (2004).
69
Id.
70
Arrest Warrant Case, supra note 65, at para. 61 (where in its dictum, the ICJ stated that
immunity might be lifted in four instances such as when the accused is tried in their home state; if the
Statute states that personal immunities do not bar the ICC from exercising
its jurisdiction irrespective of the status of the person accused of
committing an international crime.71 It is also worth noting that the
International Law Commission (“ILC”) has embarked on a study of
immunities for incumbent or foreign Heads of State and senior
government officials which includes looking at personal immunities,
amongst other related issues.72 The ILC Special Rapporteur has reported
that personal immunities for sitting senior state officials in domestic
courts are widely recognized and that no evidence exists that state
practice leads to exceptions.73 The ILC Special Rapporteur also stated
that if there are exceptions to personal immunities they must satisfy the
two requirements of international customary law: state practice and
opinio juris.74
As discussed above, the current international law position is that

while President Al Bashir may be entitled to personal immunities before
domestic courts, no such entitlement exists before international courts.
The question that remains is whether he is entitled to immunities before
the South African courts for the purposes of South Africa’s obligation to
cooperate with the ICC by arresting and surrendering him to the ICC.
This question becomes more important since Sudan is not party to the
Rome Statute.
III. THE ROME STATUTE ON IMMUNITIES AND NON-PARTY STATES TO
THE ROME STATUTE
As explained above, article 27(2) abrogates the immunities of

persons accused of having perpetrated international crimes before the
ICC irrespective of their status, while article 98(1) prohibits the ICC from
requesting states parties to surrender or assist if such assistance would
require the requested state to breach its customary international law
home state waives immunity; if the accused no longer holds office; and when the accused stands trial
before certain international courts).
71
Rome Statute, supra note 6, art. 27(2) states that ‘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 [ICC] from exercising its jurisdiction over such a person’.
72
See Concepción Escobar Hernández (Special Rapporteur), Fifth Report. on Immunity of State
Officials from Foreign Criminal Jurisdiction, U.N. Doc. A/CN.4/701 (June 14, 2016) [hereinafter ILC
Fifth Report.].
73
Roman Anatolevich Kolodkin (Special Rapporteur), Second Report. on Immunity of State
Officials from Foreign Criminal Jurisdiction, para. 94, U.N. Doc. A/CN.4/631 (June 10, 2010)
[hereinafter ILC Second Report.] (reissued for technical reasons on Feb. 22, 2011); see also, ILC Fifth
Report. supra note 72, at para. 196.
74
Id. para. 54.
obligations owed to a third state.75 Cooperation by states parties to arrest

and surrender persons from a third state76 is allowed only when the ICC
secures cooperation of the third state for the waiver of immunities.77
Further, as with any other treaty, the Rome Statute binds those states who
have subscribed to it.78 Third states are therefore not bound by the Rome
Statute when it comes to cooperation with the ICC. However, article
13(b) of the Rome Statute gives jurisdiction to the ICC to prosecute
perpetrators from third states by virtue of a referral from the UN Security
Council, as was the case for Sudan’s President Al Bashir.79 The question
is whether states parties to the Rome Statute are obliged to arrest
President Al Bashir who is a sitting head of a third state. This is where
the apparent conflict between articles 27(2) and 98(1) of the Rome
Statute becomes relevant.
A. Two Schools of Thought Resolving the Conflict Between

Articles 27(2) and 98(1)
There are two schools of thought on the apparent conflict. One
view, to which I subscribe, is that article 98(1) means that a state party to
the Rome Statute may not be forced to cooperate with the ICC request to
arrest and surrender an accused from a third state if such cooperation will
breach the customary international law obligations the state party owes to
the third state.80 The argument is that once the Security Council refers
the matter to the ICC for investigation, the Rome Statute applies. This
means that the proceedings of the referral will be conducted in
accordance with the Rome Statute, the ICC Rules of Procedure, and the
Elements of Crime.81 However, this does not make Sudan a party to the
Rome Statute. In fact, “a referral by the Security Council is simply a
mechanism envisaged in the Statute to trigger the jurisdiction of the ICC:
it does not and cannot turn a non-party to the Statute into a state party,
and it has not turned Sudan into a state party to the Statute.”82 In order
for states parties to be able to arrest and surrender President Al Bashir,
the ICC will still need to obtain a waiver of personal immunities entitled
75
Paola Gaeta, Official Capacity and Immunities, in 1 THE ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY 990 (Antonio Cassese, Paola Gaeta & John Jones
eds., 2002).
76
Vienna Convention, supra note 5, art. 2(1)(h) (defines a third state as “a state not party to the
treaty”).
77
DRC Decision, supra note 60, para. 22.
78
Vienna Convention, supra note 5, art. 34 (states that a “treaty does not create either
obligations or rights for a third state without its consent”).
79
See S.C. Res. 1593, supra note 10.
80
Gaeta, supra note 57.
81
Id. at 324.
82
Id.
to President Al Bashir from Sudan—a third state.83 According to this

view, the tension between articles 27 and 98 will only be resolved by the
ICC securing the waiver from Sudan. There is no evidence which
suggests that the ICC has secured a waiver of personal immunities
entitled to President Al Bashir from Sudan.
The alternative view is that because the ICC is prosecuting an

accused from a third state by virtue of a Security Council referral, this
means that the referral by the Security Council is binding upon Sudan,
which abrogates President Al Bashir’s personal immunities.84 According
to this view, “[t]he fact Sudan is bound by article 25 of the UN Charter
and implicitly by Security Council Resolution 1593 to accept the
decisions of the ICC puts Sudan in an analogous position to a party to the
[Rome] Statute.”85 This view goes further and argues that Sudan’s
obligations to abide by the Rome Statute are derived from the UN
Charter and Security Council Resolution 1593. This is how the tension
between articles 27 and 98 in the Al Bashir matter would be resolved
under this view.86
B. The AU’s Response: The Malawi and Chad Decisions

The AU Assembly of Heads of State and Government (“AU
Assembly”) adopted numerous decisions based on the first school of
thought, where it has argued that by not cooperating with the ICC to
arrest and surrender President Al Bashir, the AU member states are
abiding by their obligations under article 98(1) of the Rome Statute.87
Put differently, the AU Assembly argues that article 98(1) requires the
Rome Statute states parties not to abide by the ICC requests if those
requests will make them breach their customary international law
obligations owed to the third state.88 The AU then instructed its member
83
Id. at 329.
84
Dapo, supra note 40, at 335.
85
Id. at 342.
86
Id.
87
See, e.g., Decision on the Implementation of the Assembly Decisions on the International
Criminal Court, Assembly of the Union, Seventeenth Ordinary Session, EX.CL/670(XIX),
Assembly/AU/Dec.366(XVII) (July 1, 2011) (where the AU Assembly instructed the AU member
states not to cooperate with the execution of the arrest warrant of Gaddafi and reaffirmed that by
receiving President Al Bashir, Kenya and Djibouti were discharging their obligations under art 23(2)
of the AU Constitutive Act and art 98 of the Rome Statute. The AU Assembly is the supreme organ of
the AU which comprises of Heads of State and government of AU member states, which is the
founding treaty of the AU)); See Constitutive Act of the African Union art. 6(1) & (2), July 11, 2000,
2158 U.N.T.S. 3.
88
See, e.g., Decision on the Application by the International Criminal Court Prosecutor for the
Indictment of the President of the Republic of the Sudan, Assembly of the Union, Twelfth Ordinary
Session, Assembly/AU/Dec.221(XII) para. 1, (where the AU Assembly expressed “its deep concern”
of the ICC Prosecutor’s indictment of President Al Bashir. Subsequently, the AU Assembly took a
common position to instruct the AU member states not to abide by the ICC Requests to arrest and
states not to comply with the ICC request to arrest and surrender
President Al Bashir and relied on the apparent conflict between articles
27(2) and 98(1) of the Rome Statute. Indeed, this is the argument that
has been used by the AU member states to the ICC in their failure to
comply with the obligations to arrest and surrender President Al Bashir.
For example, Malawi89 and Chad90 both relied on the “position

adopted by the [AU] in respect to the international warrant of arrest
issued by the Prosecutor against [President] Al Bashir,”91 and as
members of the AU they refused to cooperate with the ICC request to
arrest and surrender him to the ICC. Malawi explained that since Sudan
was not party to the Rome Statute, and in accordance with the public
international principles and its domestic laws, the bar to immunity in
terms of article 27(2) did not apply to President Al Bashir.92
The Pre-Trial Chamber noted the apparent conflict between article

27(2) and 98(1), but without any explanation, decided that Malawi and
Chad (and the AU) were “not entitled to rely on article 98(1) to justify
refusing to comply with Cooperation Requests.”93 The Pre-Trial
Chamber then gave four reasons why Malawi should have arrested and
surrendered Al Bashir.94 First, the Pre-Trial Chamber noted that
immunities for Heads of States have been rejected by international courts
since World War I.95 Second, an increase in the prosecution of Heads of
States by courts in the last decade include former presidents Milosevic,
Charles Taylor, Maummar Gaddafi, and Laurent Bagbo.96 Third, 120
states have ratified the Rome Statute since its inception, meaning these
surrender President Al Bashir; see Decision of the Meeting of African States Parties to the Rome
Statute of the International Criminal Court, Assembly of the Union, Thirteenth Ordinary Session,
Assembly/AU/13 (XIII), para. 10; see also Decision On The International Criminal Court, Assembly
of the Union, Twenty-Sixth Ordinary Session, EX.CL/952(XXVIII), Assembly/AU/Dec.590(XXVI)
paras. 3-4 (where it commended South Africa ‘for complying with the Decisions of the Assembly on
non-cooperation with the arrest and surrender of President Omar Al Bashir of The Sudan and [decided]
that by receiving President Bashir, [South Africa] was implementing various AU Assembly [d]ecisions
on the warrants of arrest issued by the ICC against President Bashir and that South Africa was
consistent with its obligations under international law [and reiterated] its decision on the need for all
Member States to comply with the Assembly [d]ecisions on the warrants of arrest issued by the ICC
against President Al Bashir of The Sudan pursuant to Article 23 (2) of the Constitutive Act of the
African Union and Article 98 of the Rome Statute of the ICC’).
89
Malawi Decision, supra note 52.
90
Prosecutor v. Al Bashir, ICC-02/05-01/09-140, Decision Pursuant to Article 87(7) of the
Rome Statute on the Refusal of the Republic of Chad to Comply with the Cooperation Requests Issued
by the Court with Regard to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 13,
2011), https://www.icc-cpi.int/CourtRecords/CR2012_04203.PDF [hereinafter Chad Decision].
91
Id. para. 7; Malawi Decision, supra note 52 para. 13(ii).
92
Malawi Decision, supra note 52 para. 13(i).
93
Id. para. 37.
94
Id. paras. 38-42.
95
Id.
96
Id.
states have recognized the exceptions to immunities of the states’ top

officials.97 They ratified the Rome Statue knowing full well the
existence of article 27(2). The Pre-Trial Chamber also noted that “[e]ven
some States which have not joined the [ICC] have twice allowed for
situations to be referred to the [ICC] by United Nations Security Council
Resolutions, undoubtedly in the knowledge that these referrals might
involve prosecution of Heads of State who might ordinarily have
immunity from domestic prosecution.”98 Finally, the Pre-Trial Chamber
decided that it is inconceivable for Malawi to entrust the ICC with the
mandate to prosecute perpetrators of international crimes and then
interpret article 98(1) in a way that would render it impossible for the
ICC to exercise such a mandate.99 Based on these reasons, the Pre-Trial
Chamber found that there exists an exception to Head of State immunity
under customary international law, which made article 98(1) of the Rome
Statute inapplicable.100 In a subsequent case, the Chad Decision,
President Al Bashir had attended an inauguration of the President of
Chad. The Pre-Trial Chamber applied the same reasoning in the Malawi
Decision. In fact, it referred to the Malawi Decision verbatim in
deciding that Chad was under an obligation to abide by the ICC
cooperation request and arrest President Al Bashir.101
The Pre-Trial Chamber decisions on Malawi and Chad were
severely criticized by scholars for failure to deal with the apparent
conflict between articles 27(2) and 98(1) of the Rome Statute.102 First,
the Pre-Trial Chamber failed to make reference to the two schools of
thought mentioned above and take a stand.103 It was expected that the
97
Id.
98
Id. para. 41.
99
Id.
100
Id. para. 43.
101
See Chad Decision, supra note 90, paras. 12-14.
102
See, e.g., Dapo Akande, ICC Issues Detailed Decision on Bashir’s Immunity (… At Long Last
…) But Gets the Law Wrong, BLOG OF THE EUROPEAN JOURNAL OF INTERNATIONAL LAW
(Dec. 15, 2011), http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%E2%80%99s-
immunity-at-long-last-but-gets-the-law-wrong/; William Schabas, Obama, Medvedev and Hu Jintao
May be Prosecuted by International Criminal Court, Pre-Trial Chamber Concludes, PHD STUDIES IN
HUMAN RIGHTS, (Dec. 15, 2011, 12:21 PM),
http://humanrightsdoctorate.blogspot.co.za/2011/12/obama-medvedev-and-hu-jintao-may-be.html;
Dov Jacobs, A Sad Hommage to Antonio Cassese: The ICC’s Confused Pronouncements on State
Compliance and Head of State Immunity, SPREADING THE JAM, (Dec. 15, 2011),
https://dovjacobs.com/2011/12/15/a-sad-hommage-to-antonio-cassese-the-iccs-confused-
pronouncements-on-state-compliance-and-head-of-state-immunity/; Dyani-Mhango, supra note 40;
Dire Tladi, The ICC Decisions on Chad and Malawi: On Cooperation, Immunities, and Article 98, 11
J. INT’L CRIM. JUST. 199 (2013).
103
Alexander K.A. Greenwalt, Introductory Note to the International Criminal Court: Decisions
Pursuant to Articles 87(7) of the Rome Statute on the Failure by the Republic of Malawi and the
Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the
Arrest and Surrender of Omar Hassan Ahmad Al Bashir & African Union Response, 51 INT’L LEGAL
Pre-Trial Chamber would deal with the conflict to bring clarity.

Secondly, the Pre-Trial Chamber’s decision rendered article 98(1)
redundant by deciding that article 27(2) cancelled any customary
international law immunities that may be owed to a third state—Sudan in
this case.104 In other words, the Pre-Trial Chamber did not make a
distinction between heads of third states and heads of states parties, which
article 98 of the Rome Statute intends to do when it comes to immunities.
Thirdly, the Pre-Trial Chamber’s decision—that there existed a general
exception to the Heads of State immunity in prosecutions before
international courts—is flawed, as this is a misreading of the Arrest
Warrant Case,105 which stated that immunities may be lifted in
circumstances which include “an incumbent or former Minister for
Foreign Affairs . . . subject to criminal proceedings before certain
international criminal courts, where they have jurisdiction . . . .”106 This
can be interpreted to mean that international courts or tribunals do not
have automatic jurisdiction to lift personal immunities to which senior
state officials are entitled.107 This also ties to the fact that there is a legal
distinction between a Head of State that is party to a treaty and that which
comes from a third state. The Pre-Trial Chamber fails to make that
distinction.108
C. The DRC Decision Finally Resolved the Tension, But Many

Issues Remain
In subsequent decisions, the Pre-Trial Chamber addressed the

tension between articles 27(2) and 98(1) and adopts the second school of
thought advanced by Akande—that Sudan’s obligations to abide by the
Rome Statute are derived from the UN Charter and the Security Council
Resolution 1593.109 In fact, these decisions were made by the Pre-Trial
MAT. 393, 393-4 (2012) (criticising the Pre-Trial Chamber for failing to take into account the two
approaches).
104
Akande, supra note 102. For a contrary view see Tladi supra 102 arguing that since the Pre-
Trial Camber did not undertake any interpretation of article 98(1), there is no basis to argue that the
PTC rendered it meaningless.
105
See also, Akande, supra note 102.
106
Arrest Warrant Case, supra note 65, para. 61.
107
Akande, supra note 102.
108
Gaeta, supra note 57 (correctly arguing that the ICC needs to obtain a waiver of immunity in
this instance); see also, Vienna Convention, supra note 5, art. 35 (reiterates that a third state must
consent to be bound by a treaty in writing).
109
See DRC Decision, supra note 60; Prosecutor v. Al Bashir, ICC-02/05-01/09-242, Decision
Following the Prosecutor’s Request for an Order Clarifying that the Republic of South Africa is Under
an Obligation to Immediately Arrest and Surrender Omar Al Bashir, (June 13, 2015), https://www.icc-
cpi.int/CourtRecords/CR2015_06500.PDF; Prosecutor v. Al Bashir, ICC-02/05-01/09-267, Decision
on the Non-Compliance by the Republic of Uganda with the Request to Arrest and Surrender Omar Al-
Bashir to the Court and Referring the Matter to the United Nations Security Council and the Assembly
of States Parties to the Rome Statute, (July 11, 2016), https://www.icc-
cpi.int/CourtRecords/CR2016_04947.PDF; Prosecutor v. Al Bashir, ICC-02/02-01/09-266, Decision
Chamber II without explaining its departure from the Malawi and Chad
decisions.110 In the DRC Decision,111 President Al Bashir visited the
Democratic Republic of Congo (“DRC”) to attend the COMESA Summit,
where the DRC claimed that the invitation came from the organisation
and not from the DRC itself.112 The DRC invoked the same defense as
Malawi and Chad: that the AU had instructed its member states not to
cooperate with the ICC,113 as this would be inconsistent with their
obligations to respect the immunities attached to President Al Bashir as a
sitting Head of State.114 The DRC also “wondered” about the other states
parties to the ICC that had failed to comply with the ICC request to
cooperate (or their obligations to arrest and surrender) and whether this
was due to the immunities afforded to President Al Bashir as a sitting
Head of State.115 The Pre-Trial Chamber II made it clear that the issue
was not about other states parties’ motives for failing to comply with the
ICC’s request to cooperate, as this did not relieve the DRC of its
obligations under the Rome Statute. The issue was that the DRC, as a
state party, “failed to execute the 2009 and 2010 Requests issued by the
[ICC]”116 and “to discharge its obligation to consult or notify the [ICC] in
due course.”117
The Pre-Trial Chamber II confirmed the existence of customary

international law personal immunities for Heads of State—irrespective of
whether such states are party to the Rome Statute or not. The Pre-Trial
Chamber also confirmed that if Heads of State are prosecuted before the
ICC, article 27(2) of the Rome Statute removes any reliance on
on the Non-Compliance by the Republic of Djibouti with the Request to Arrest and Surrender Omar
Al-Bashir to the Court and Referring the Matter to the United Nations Security Council and the
Assembly of the State Parties to the Rome Statute, (July 11, 2016), https://www.icc-
cpi.int/CourtRecords/CR2016_04946.PDF.
110
The Darfur Sudan Situation was relocated from Pre-Trial Chamber I to Pre-Trial Chamber II.
See Prosecutor v. Al Bashir, ICC-02/05-01/09-143, Decision on the Constitution of the Pre-Trial
Chambers and on the Assignment of the Democratic Republic of Congo, Darfur, Sudan and Cote
d’Ivoire Situations, (Mar. 3, 2012). Pre-Trial Chambers I and II exercise the same functions in terms of
arts. 34 and 39 of the Rome Statute. That is why it is interesting to note that Pre-Trial Chamber II’s
departure from Pre-Trial Chamber I’s Malawi and Chad decisions in the DRC decision is not
explained.
111
DRC Decision, supra note 60.
112
Id. para. 12.
113
Id. para. 19 (where the DRC made references to the AU Assembly Decision of 2013-10-12
that “no serving AU Head of State or Government shall be required to appear before any international
court or tribunal during their term of office”).
114
Id.
115
Id. para. 20.
116
These requests emanate from the arrest warrants issued against President Al Bashir requesting
states party to the Rome Statute to cooperate by arresting and surrendering President Al Bashir to the
ICC. See, e.g., Second Decision on the Prosecution’s Application for a Warrant of Arrest, supra note
19 (on the Pre-Trial Chamber’s requests to states to cooperate by arresting and surrendering President
Al Bashir to the ICC).
117
Id
customary international law immunities.118 The Pre-Trial Chamber II

acknowledged that the Rome Statute can only bind those states that have
ratified it and not the third states without their consent, as the rules of
international law so provide.119 Therefore, in the event that the ICC were
to be faced with the prosecution of a Head of State from a third state, the
Pre-Trial Chamber II confirmed that the issue of immunities could be
raised. Under these circumstances, article 98(1) of the Rome Statute
directs the ICC “to secure the cooperation of the third State for the waiver
or lifting the immunity of its Head of State” and thus “prevent [] the
requested State from acting inconsistently with its international
obligations towards the [third state] with respect to the immunities
attached to the latter’s Head of State.”120 This was also confirmed by the
ICC Pre-Trial Chamber II in several decisions,121 where the Chamber
“highlight[ed] that only States Parties to the [Rome] Statute are under the
obligation to cooperate with the Court.”122 The ICC Pre-Trial Chamber II
also confirmed that this position may be altered by the Security Council
by passing a resolution under Chapter VII of the UN Charter that
demands cooperation from non-party states.123 Further, the Pre-Trial
Chamber II acknowledged that except for Sudan,124 Resolution 1593 did
not demand such cooperation as it merely “‘urge[d] all states and
concerned regional and other international obligations to cooperate fully’
with the [ICC].”125
118
Id. para. 25.
119
Id. para. 26.
120
Id. para. 27.
121
See, e.g., Prosecutor v. Gaddafi, ICC-01/11-01/11-420, Decision on the Request of the
Defense of Abdullah Al-Senussi to Make a Finding of Non-Cooperation by the Islamic Republic of
Mauritania and Refer the Matter to the Security Council, (Aug. 28, 2013), https://www.icc-
cpi.int/CourtRecords/CR2013_05689.PDF; Prosecutor v. Al Bashir, ICC-02/05-01/09-162,
Decision Regarding Omar Al Bashir’s Potential Travel to the United States of America, (Sep. 18,
2013), https://www.icc-cpi.int/CourtRecords/CR2013_06263.PDF [hereinafter USA Decision];
Prosecutor v. Al Bashir, ICC-02/05-01/09-164, Decision Regarding Omar Al Bashir’s Potential Travel
to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia, (Oct. 10, 2013),
https://www.icc-cpi.int/CourtRecords/CR2013_07402.PDF; Prosecutor v. Al Bashir, ICC-02/05-01/09-
169, Decision Regarding Omar Al Bashir’s Potential Travel to the State of Kuwait, (Nov. 18, 2013),
https://www.icc-cpi.int/CourtRecords/CR2013_08951.PDF; and Prosecutor v. Al Bashir, ICC-02/05-
01/09-199, Decision Regarding the Visit of Omar Hassan Ahmad Al Bashir to the Federal Republic of
Ethiopia, (Apr. 29, 2014), https://www.icc-cpi.int/CourtRecords/CR2014_03809.PDF.
122
USA Decision, supra note 121, para. 9.
123
Id. para. 10.
124
See also Prosecutor v. Al Bashir, ICC-02/05-01/09-227, Decision on the Prosecutor’s Request
for a Finding of Non-Compliance against the Republic of Sudan paras. 11, 15 (Mar. 9, 2015),
https://www.icc-cpi.int/CourtRecords/CR2015_02745.PDF (where the ICC Pre-Trial Chamber noted
that Sudan has persistently refused to cooperate with the ICC as is does not recognize its jurisdiction.
However, the Pre-Trial Chamber found that Resolution 1593(2005) binds the Sudanese government
and that it had failed to abide by its obligations in terms of the UN Charter.).
125
USA Decision, supra note 121, para. 11.
However, in the DRC Decision, the Pre-Trial Chamber II found

that this case did not fall under those circumstances, where the DRC
would act inconsistent with its international obligations if it arrested and
surrendered President Al Bashir.126 The Pre-Trial Chamber II’s reasons
were as follows: Firstly, the Security Council Resolution 1593’s
instruction to Sudan to “cooperate fully” and to “provide any necessary
assistance to the Court” eliminated any impediment to arrest and
surrender, and lifted any immunity Al Bashir might have had.127
Accordingly, the decision by the Security Council in Resolution 1593128
essentially satisfied article 98(1) of the Rome Statute’s requirement for
the ICC to “first obtain the cooperation of [the] third State for the waiver
of the immunity.”129 The Pre-Trial Chamber stated that an alternative
interpretation would render the Security Council’s decision requiring
Sudan to “cooperate fully” and to “provide any necessary assistance to
the Court” “senseless.”130
Secondly, the Pre-Trial Chamber reasoned that the Security

Council Resolution 1593 “implicitly waived the immunities granted to Al
Bashir under international law and attached to his position as a head of
State. Consequently, there also exists no impediment at the horizontal
level between the DRC and Sudan as regards the execution of the 2009
and 2010 requests.”131 Thirdly, the Pre-Trial Chamber II stated that the
UN Charter, from whose provisions the Security Council operates, took
precedence over the resolutions of the AU as envisaged in articles 25132
and 103133 of the UN Charter. Consequently, the AU resolutions could
not be invoked by the DRC to avoid complying with the ICC obligations,
as the Security Council implicitly waived Sudan’s immunities.134 A
series of decisions thereafter followed, where the Pre-Trial Chamber used
the same reasoning to conclude that the Security Council Resolution 1593
implicitly waived President Al Bashir’s customary international law
126
DRC Decision, supra note 60, para. 29
127
Id.
128
S.C. Res. 1593, supra note 10, para. 1-2 ( “2. Decides that the Government of Sudan and all
other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance
to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party
to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and
other international organizations to cooperate fully.”).
129
DRC Decision, supra note 60, para. 24.
130
Id. para. 29
131
Id.
132
U.N. Charter art. 25 (“[t]he Members of the United Nations agree to accept and carry out the
decisions of the Security Council in accordance with the present Charter.”).
133
Id. art. 103 (“[i]n the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.”).
134
DRC Decision, supra note 60, paras. 30, 31.
immunities, and consequently there exists no horizontal bar between the

requested state party and Sudan.135
The Pre-Trial Chamber should be commended for finally

addressing the conflict between articles 27(2) and 98(1) of the Rome
Statute and for confirming that article 98(1) precludes the ICC from
requesting a state to cooperate by arresting and surrendering a Head of
State of a third state if such cooperation will make the requested state act
inconsistent with its international obligations towards a third state.
However, the state party need not recognize a third state leader’s
immunity if the ICC has requested the third state to lift or waive the
immunities and the third state agrees to the request.136 However, despite
having dealt with the conflict between articles 27(2) and 98(1) of the
Rome Statute, the DRC Decision still received both criticism137 and
support from academics.138 Further, I argue that the concerns I raised
while criticizing the Malawi Decision have not been fully addressed by
the Pre-Trial Chamber II for the following reasons.139
The DRC Decision endorses the view by Akande that the UN

Charter and the Security Council Resolution 1593, by implication, make
Sudan bound by the Rome Statute.140 According to this view, there is no
impediment on state parties to the Rome Statute (such as the DRC) to
arrest and surrender President Al Bashir to the ICC. Therefore, in
refusing to arrest and surrender President Al Bashir, the DRC cannot
invoke the customary international law obligations it owes to Sudan, a
non-party state, as per article 98(1). This view is problematic as it goes
against the rules of international law that require a state to consent to be
135
See the decisions listed in footnotes 87 and 88.
136
See also Paola Gaeta, Guest Post: The ICC Changes its Mind on the Immunity from Arrest of
President Al Bashir, But it is Wrong Again, OPINIO JURIS (Apr. 23, 2014, 10:00 AM),
http://opiniojuris.org/2014/04/23/guest-post-icc-changes-mind-immunity-arrest-president-al-bashir-
wrong/ (arguing that the Decision “correctly recognizes that Article 98 (1) of the Statute directs the
Court to secure cooperation of a [third] State . . . for the waiver or lifting of the immunity of its Head
of State.”).
137
Id.; Dire Tladi, The Duty on South Africa to Arrest and Surrender Al Bashir under South
African and International Law: A Perspective from International Law, 13 J. INT’L CRIM. JUST. 1027
(2015); Manuel J. Ventura, Escape from Johannesburg? Sudanese President Al-Bashir Visits South
Africa, and the Implicit Removal of Head of State Immunity by the UN Security Council in light of Al
Jedda, 13 J. INT’L CRIM. JUST. 995 (2015); André de Hoogh & Abel Knottnerus, ICC Issues New
Decision on Al Bashir’s Immunities – But Gets the Law Wrong … Again, EJIL: TALK! (Apr. 18, 2014),
https://www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities-%E2%80%92-but-gets-the-
law-wrong-again/.
138
See Nerina Boschiero, The ICC Judicial Finding on Non-cooperation Against the DRC and
No Immunity for Al-Bashir Based on UNSC Resolution 1593, 13 J. INT’L CRIM. JUST. 625 (2015);
Erika de Wet, The Implications of President Al-Bashir’s Visit to South Africa for International and
Domestic Law, 13 J. INT’L CRIM. JUST. 1049 (2015).
139
Dyani-Mhango, supra note 40.
140
Akande, supra note 57, at 335.
bound by a treaty.141 It is also important to note that while Sudan is

bound by the UN Charter which gives certain powers to the Security
Council, including the power to refer a situation to the ICC, such powers
are limited.
To illustrate this point, the Security Council merely refers a

situation to the ICC for further investigation and for the ICC to decide on
its own whether or not to prosecute. Once the Security Council makes
the referral to the ICC, only the provisions of the Rome Statute will apply
and not those of the UN Charter.142 Article, 13(b) of the Rome Statute
states that “[t]he [ICC] may exercise its jurisdiction . . . in accordance
with the provisions of this Statute if: (b) A situation in which one or more
of such crimes appears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the [UN
Charter].”143 This provision does not require the ICC to prosecute
without following its own process nor does it extend the powers of the
Security Council to apply extraterritorially (to the ICC).144 It is therefore
expected that the ICC will first satisfy itself that there is a case to be
heard even if it is a referral from the Security Council.145 In support of
this assertion, article 19 of the Rome Statute requires the ICC to “satisfy
itself that it has jurisdiction in any case brought before it” and that it may
on its own motion determine the admissibility of the case.146
141
See Vienna Convention, supra note 5, art. 34-35. DRC Decision, supra note 60, para. 26 (Apr.
9, 2014) (also confirmed such – that “the [Rome] Statute cannot impose obligations on third States
without their consent. Thus, the exception to the exercise of the [ICC]’s jurisdiction provided in article
27(2) of the Statute should, in principle, be confined to those States Parties who have accepted it.”).
142
See Gaeta, supra note 136 (arguing that “the referral of a situation to the Court by the Security
Council constitutes just one of the conditions for the exercise by the Court of its criminal jurisdiction,
and does not constitute the source of the jurisdiction of the Court. This applies also when the Security
Council refers to the Court a situation where the crimes are committed in the territory or by a national
of a state not party to the Rome Statute.”).
143
See Rome Statute, supra note 6, art. 13(b) (emphasis added).
144
See Dyani-Mhango, supra note 40, 118 (arguing that the provision only avails a jurisdictional
mechanism to the Security Council when dealing with its Chapter VII powers); See also Rome Statute,
supra note 6, pmbl. (stating that states parties are “[d]etermined to these ends and for the sake of
present and future generations, to establish an independent permanent [ICC] in relationship with the
United Nations system, with jurisdiction over the most serious crimes of concern to the international
community as a whole.”).
145
See generally Markus Benzing, The Complementarity Regime of the International Criminal
Court: International Criminal Justice between State Sovereignty and the Fight against Impunity, 7
MAX PLANCK Y.B. U.N. L. 591, 621 (2003) (discussing the admissibility of cases in the ICC where he
argues that “it is the [ICC] as a judicial body itself that determines conclusively whether or not a case
is admissible, including all the necessary criteria for determination.”).
146
See Rome Statute, supra note 6, art. 19 (emphasis added); See also, Prosecutor v. Al Bashir,
ICC-02/05-01/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar
Hassan Ahmad Al Bashir, para. 35 (Mar. 4, 2009), https://www.icc-
cpi.int/CourtRecords/CR2009_01517.PDF (where the Pre-Trial Chamber reiterates that “[a]rticle 19(1)
of the [Rome] Statute requires the [Pre-Trial] Chamber to satisfy itself that any case brought before it
falls within the jurisdiction of the [ICC].”).
Furthermore, the Rome Statute147 does not make a distinction between the
different mechanisms to trigger jurisdiction mentioned in article 13(b).148
The ICC is not bound to investigate or even prosecute just because the
Security Council referred a matter to it.149 The Rome Statute is clear that
the investigation lies only with the Prosecutor (and the ICC in general)
and therefore it is expected of the Prosecutor to make an independent
decision whether to investigate a situation or not, irrespective of who
referred the matter to the ICC.150 Therefore, while the Security Council
will be acting under Chapter VII of the UN Charter when it refers a
situation to the ICC, this does not translate into the application of the UN
Charter provisions to the ICC.
Secondly, it is hard to fathom that the Security Council can

implicitly waive sovereign immunities of a UN member state.151 One of
the pillars of the UN is the sovereign equality of its member states152 and
“the rationale underlying waiver of immunity—like the rationale for
immunity itself—is based on the sovereign equality of states and the
principle of par in parem non habet imperium.”153 Only a state may
147
See Rome Statute, supra note 6, art. 17 (which discusses issues of admissibility in the ICC).
148
Id. art. 13 (which in its entirety reads as follows:
“Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by a State Party in accordance with article
14; (b) A situation in which one or more of such crimes appears to have been committed is referred to
the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;
or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article
15.”).
149
See Press Release, Security Council, International Criminal Court Prosecutor Tells Security
Council Investigation into Darfur Crimes Initiated 1 June, U.N. Press Release SC/8429 (Jun. 29, 2005)
(commenting on the Al Bashir referral by the Security Council to the ICC, that the Office of the
Prosecutor “will conduct its own independent investigation in order to determine those persons who
must be prosecuted.”); See also Gaeta, supra note 136 (arguing that “[t]he obligations set forth by the
Security Council upon a UN member State with a binding decision under Chapter VII of the UN
Charter cannot affect the rights and powers of another international organization, in this case the ICC,
as they are regulated in the respective constitutive instrument of such other international
organization.”).
150
Rome Statute, supra note 6, art. 15 (especially 15(2) and (3) which state:
“2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he
or she may seek additional information from States, organs of the United Nations, intergovernmental
or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may
receive written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he
or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together
with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in
accordance with the Rules of Procedure and Evidence.”).
151
Emphasis added.
152
UN Charter art. 2, para.1 (stating that ‘[t]he [UN] is based on the principle of the sovereign
equality of all its Members.”).
153
Int’I Law Comm’n, Third Rep. on the Immunity of State Officials from Foreign Criminal
Jurisdiction, U.N. Doc. A/CN.4/646, para. 32 (2011) [hereinafter ILC Third Report]. For further
reading on the principle of par in parem non habet imperium see Yoram Dinstein, Par in Parem non
waive its own immunities, as the immunity belongs to a state and not the
individual,154 and such a waiver should be explicit.155 This reasoning is
also apparent in the correct interpretation of article 98(1) of the Rome
Statute which requires the ICC to request the third state to waive its
immunities.156 This is in line with the rule that third states are required to
expressly consent to be bound by a treaty.157 The exception will be only
when the Security Council passes a binding resolution that explicitly
removes Sudan’s immunities.158 This depends on the context and the
language used in such a resolution. In this regard, the ICJ has opined that
[t]he language of the Security Council resolution should be

carefully analysed before a conclusion can be made as to its
binding effect. In view of the nature of the powers under
Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to
the terms of the resolution to be interpreted, the discussions
leading to it, the Charter provisions invoked and, in general,
all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council.159
Looking at the language of paragraph 2 of Security Council Resolution
1593 on which the Pre-Trial Chamber II relies, it is evident that the
resolution does not bind all UN member states, but only Sudan to fully
cooperate with the ICC.160 However, Security Council Resolution 1593
does not expressly remove the immunities of Sudan. As explained above,
immunities relate to state sovereignty and equality of states and it is
imperative that any waiver or removal of such immunities by the Security
Habet Imperium, 1 ISR. L. REV. 407 (1966) (arguing that this principle “is commonly regarded as the
starting point for any venture into the field of State immunities.”).This principle literally means that
“one state has no power over another”. See id. at 413-4.
154
ILC Third Report, supra note 153 para. 33.
155
Id. para. 55.
156
See also de Hoogh & Knottnerus, supra note 137 (arguing that only the bearer of immunity
can waive it as also stipulated in article 98(1) of the Rome Statute.); Gaeta, supra note 136 (correctly
arguing that article 98(1) “is not concerned with whether a [third] State . . . is obliged to cooperate with
the [ICC].” It requires the [ICC] to first obtain the cooperation of the third state for the waiver and that
“[t]he decision of the Security Council on the obligation of Sudan to cooperate cannot relieve the Court
from the necessity to implement a requirement for the correct exercise of a power as it is the case of
Article 98 (1) of the Rome Statute.”).
157
Vienna Convention, supra note 5, art. 35.
158
See de Hoogh & Knottnerus, supra note 137.
159
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J.
16, para. 114 (June 21).
160
S.C. Res. 1593, supra note 10, para. 2 (which states “Decides that the Government of Sudan
and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary
assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States
not party to the Rome Statute have no obligation under the Statute, urges all States and concerned
regional and other international organizations to cooperate fully” (emphasis added)).
Council under Chapter VII of the UN Charter should be in express

terms.161 Therefore, it is reasonable to conclude that Security Council
Resolution 1593 does not remove Al Bashir’s personal immunities.
Further, the constant non-cooperation by states parties to the Rome
Statute subsequent to the DRC Decision shows that the issue of personal
immunities is far from settled. Indeed, the ILC has recently made two
important observations with regard to the customary international law of
personal immunities in relation to the Al Bashir matter.162 First, the ILC
reemphasized that “the inapplicability of immunity agreed upon states
through treaties only applied to states parties.”163 It then observed that
any exception that arose in a vertical relationship with an international
criminal jurisdiction is not yet evidence of a customary rule in a
horizontal relationship among states.164 Secondly, the ILC observed that
developments still need to be carefully considered before rejecting the
impact the practice of international criminal tribunals may have over
horizontal relationships, depending on the context of each case.165
The Security Council has not yet condemned nor taken any action
against the non-compliant member states despite numerous reports and
statements by the ICC President and the Prosecutor.166 Article 87(7) of
the Rome Statute states that “where a party failed to comply with a
request for cooperation by the [ICC] contrary to the provisions of the
[Rome] Statute . . . The [ICC] may make a finding to that effect and refer
the matter . . . to the Security Council.”167 The Pre-Trial Chamber has
eloquently summarized the role of the Security Council on the failure by
states to cooperate with the ICC as follows:
When the Security Council, acting under Chapter VII of the

UN Charter, refers a situation to the Court as constituting a
threat to international peace and security, it is expected that
the Council would spend by way of taking such measures
which are considered appropriate, if there is an apparent
161
Ventura, supra note 137, at 1018 (arguing that “if one accepts such a notion [that the Security
Council can remove a well-established and well recognized norm of international law], and
considering the wide-ranging powers of the UN Security Council under Chapter VII (including
authorizing the use of force), then this could potentially open the door to the disturbance or
displacement of other rules of international law as a result of vague or unclear UN Security Council
resolutions. And the consequences may not be welcomed or desirable.”).
162
ILC Fifth Report, supra note 72.
163
Id.
164
Id.
165
Id.
166
Rep. of the Bureau on Non-cooperation, paras. 34–39, ICC-ASP/14/38 (2015) (discussing the
(in)action by the Security Council to non-cooperating states).
167
Rome Statute, supra note 6, art. 87(7); see also id. para. 87(5) (covering requests for
cooperation and non-compliance by third states).
failure on the part of the relevant State Party to the Statute to

cooperate in fulfilling the Court’s mandate entrusted to it by
the Council. Otherwise, if there is no follow up action on the
part of the Security Council, any referral by the Council to
the ICC under Chapter VII would never achieve its ultimate
goal, which is to put an end to impunity. Accordingly, any
such referral would become futile.168
It is important that the Security Council clarifies its position on the

personal immunities of President Al Bashir, as its silence and failure to
act perpetuates non-cooperation by the UN member states who are also
states parties to the Rome Statute.
Despite the criticisms levelled against the DRC Decision, the

current law is that states parties to the Rome Statute are obligated to
arrest and surrender President Al Bashir to the ICC, as the conflict
between article 27(2) and 98(1) has been resolved by the Pre-Trial
Chamber II in the DRC Decision and subsequent decisions.169 It must be
recalled that this conflict between these articles arises because a non-
party state will ordinarily not be bound by the Rome Statute. Article
27(2), which cancels customary international law immunities, will apply.
However, because the Security Council referral of a situation occurring
from a territory of a non-party state, the ICC is expected to request the
third state to waive its immunities for the states parties to be able to arrest
and surrender the accused sitting president to the ICC. The DRC
Decision, for the reasons advanced above, made it clear that such conflict
is resolved by the Security Council Resolution 1593.170
IV. SOUTH AFRICA’S LEGAL FRAMEWORK ON IMMUNITIES, AL BASHIR,
AND THE ICC
It must be recalled that President Al Bashir visited South Africa to

attend the AU summit. It was expected that South Africa, a state party to
the Rome Statute, would arrest and surrender President Al Bashir to the
ICC. The Southern African Litigation Centre applied to the High Court
of South Africa to compel South Africa to arrest and surrender President
Al Bashir to the ICC. President Al Bashir left South Africa before the
168
Prosecutor v. Al Bashir, ICC-02/05-01/09-151, Decision on the Non-compliance of the
Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and
Surrender of Omar Hassan Ahmad Al-Bashir, para. 22 (Mar. 26, 2013), https://www.icc-
cpi.int/CourtRecords/CR2013_02245.PDF.
169
DRC Decision, supra note 60, para. 29, (where the Pre-Trial Chamber Security Council
Resolution 1593 (2005), which required Sudan “to cooperate fully with” the ICC, has waived the
immunities of Sudan and therefore there is no need for the ICC to request for the waiver.). Essentially,
the conflict between articles 27(2) and 98(1) has been resolved.
170
Id.
High Court rendered a judgment. As stated earlier, South Africa has

enacted three pieces of legislation that address immunities, including the
Implementation of the Rome Statute of the International Criminal Court
Act 27 of 2002 (“ICC Act”), which has domesticated the Rome Statute.171
This section discusses the proceedings before the South African courts on
South Africa’s failure to arrest and surrender President Al Bashir to the
ICC, and it also examines South Africa’s legislative framework on
immunities.
A. The Foreign States Immunities Act
The first piece of legislation, the Foreign States Immunities Act
("FSIA”), predates the South African Constitution and the Rome Statute,
but it is still applicable.172 The South African Law Reform Commission
“consider[ed] that the Foreign States Immunities Act . . . continues to
serve a purpose to ensure legal certainty on matters related to the extent
of immunity of foreign states from the jurisdiction of the South African
courts and propose[d] that the Act be retained on the statute book.”173
The purpose of the FSIA is “to determine the extent of the immunity of
foreign states from the jurisdiction of the courts of the Republic; and to
provide for matters connected therewith.”174 The FSIA defines the term
“foreign state” to include “the Head of State of that foreign state, in his
capacity as such Head of State.”175 This piece of legislation confers
immunities to a foreign state from the jurisdiction of the South African
courts, including criminal jurisdictions.176 The FSIA does not require the
presence of the Head of State before courts when giving effect to the
immunity conferred by the Act.177
The FSIA places restrictions on the conferral of immunities on

several grounds, including when it transpires that the foreign state
accords less (or more) immunities to South Africa, and if the immunities
and privileges accorded by the Act “are less than those required by any
treaty . . . to which that foreign state and the Republic are parties.”178 In
this regard, the President is required to make a proclamation in the
Government Gazette, which may restrict or extend such immunities
171
S. AFR. CONST. 1996 § 231(4) (which requires domestication of an international agreement
before it becomes binding domestically).
172
Foreign States Immunities Act 87 of 1981 § 18 (S. Afr.).
173
S. AFR. L. REFORM COMM’N, PROJECT 25: REPORT ON STATUTORY LAW REVISION:
LEGISLATION ADMINISTERED BY THE DEPARTMENT OF INTERNATIONAL RELATIONS AND
COOPERATION, para. 2.47 (2014).
174
Foreign States Immunities Act 87 of 1981 pmbl.
175
Id. §1
176
Id. §§2(1) and (3).
177
Id. §2(2).
178
Id. §16.
depending on the case in question.179 The FSIA also recognizes the

waiver of immunity by a foreign state and confirms that should a foreign
state expressly waive its immunities, it will then be subjected to the
jurisdiction of South African courts.180 The South African government
did not rely on any of the provisions of the FSIA in the Southern African
Litigation Centre case (“SALC”) and the reason is unclear.181
B. The Diplomatic Immunities Act
The second piece of relevant legislation is the Diplomatic

Immunities Act (“DIA”), whose purpose is “[t]o make provision
regarding the immunities and privileges of diplomatic missions and
consular posts and their members, of Heads of State, special envoys and
certain representatives of the United Nations, and its specialised agencies
. . . .”182 The long title also specifies that these immunities will be
granted with regard to the international conferences and meetings, among
other things. The DIA confers customary international law “immunities
and privileges [to] Heads of State, special envoys and certain
representatives” from both criminal and civil jurisdiction of the South
African Courts.183 It also requires that the conferment of immunities and
privileges to the Heads of State be published in the Government Gazette
by way of a notice.184
The question before the High Court in the SALC case was whether
the Cabinet Resolution, read together with a Ministerial Notice, was
capable of suspending South Africa’s obligation to arrest and surrender
President Al Bashir.185 SALC argued that South Africa is bound by its
obligations under the Rome Statue as a state party to it. This meant that
South Africa had to comply with the ICC’s request to arrest and surrender
President Al Bashir. The applicant acknowledged that South Africa
could only avoid its obligations if President Al Bashir was entitled to
immunities from the South African courts.186
179
Id.
180
Id. §3.
181
(5) SA 1 (GP) at 3 para. 1.
182
The Diplomatic Immunities and Privileges Act 37 of 2001 §4(1)(a) which states that the
categories of people ‘enjoy [the immunities] in accordance with the rules of customary international
law’.
183
Id.
184
Id. § 4(1)(c) read together with §7(2).
185
(5) SA 1 (GP) at 3 para. 1.
186
Id. para. 23.
On the other hand, the South African government argued that it

was merely hosting the event, while the AU Commission was “charged
with the exclusive responsibility of organizing, conducting and managing
the meetings and of inviting all the delegates and attendees.”187 However,
as part of the hosting agreement between the South African government
and the AU Commission, South Africa was expected to grant immunities
to certain people who would attend the Summit, including members of
the AU Commission, staff members, delegates and other representatives
of Inter-Governmental Organizations in terms of the General Convention
on the Privileges and Immunities of the Organization of African Unity
(“OAU Convention”).188 This host agreement was concluded in terms of
section 5(3) of the DIA, which provides that “[a]ny organization
recognised by the Minister for the purposes of this section and any
official of such organisation enjoy such privileges and immunities as may
be provided for in any agreement entered into with such organisation or
as may be conferred on them by virtue of section 7(2).”189 Section 7(2)
enjoins the Minister to specify the conferment of immunities by notice in
the Government Gazette.
The High Court rejected the government’s argument that the host
agreement covered President Al Bashir’s immunity, as its provisions only
conferred immunities to the AU members of staff and to the delegates or
representatives of intergovernmental organizations.190 Further, the Court
correctly pointed out that the host agreement was included under the
terms of the DIA, which deals with immunities of members of
intergovernmental organizations instead of Heads of State.191 The Court
found reliance on such provisions to be “ill-advised and ill-founded.”192
In fact, the Court correctly pointed out that the provision of the DIA that
deals with immunities of Heads of State was not relied upon by the
government.193
187
Id. para. 14.
188
Id. para. 15. The General Convention on the Privileges and Immunities of the Organization of
African Unity, Oct. 25, 1965, CAB/LEG/24.2/13 [hereinafter The OAU Convention] does not refer to
Heads of State immunity but refers to the immunities granted to the officials, delegates and
representatives of the OAU. Article V(6) of the OAU Convention defines representatives to ‘include
all delegates, deputy delegates, advisers, technical experts and secretaries of delegation’.
189
Section 5 of The Diplomatic Immunities and Privileges Act 37 of 2001 is titled ‘Immunities
and privileges of United Nations, specialised agencies and other international organisations’.
190
(5) SA 1 (GP) at 3 para. 1.28.10.1.
191
Id. (The court referred to The Diplomatic Immunities and Privileges Act 37 of 2001 § 5(3) ,
which provides that ‘[a]ny organization recognised by the Minister for the purposes of this section and
any official of such organisation enjoy such privileges and immunities as may be provided for in any
agreement entered into with such organisation or as may be conferred on them by virtue of §7(2)’).
192
Id. para. 31.
193
Id. para. 28.6.
The Court also held that the discretion of the Minister of

International Relations and Cooperation could only be exercised within
the boundaries of South African law and its obligations that arise from
both national and international law.194 The Court further held that the
AU’s decisions and Convention on Immunities could not trump South
Africa’s obligations under the ICC Act and the Rome Statute, as their
provisions “enjoy pre-eminence in our constitutional regime.”195 In fact,
the AU Convention has a persuasive status under South African law as
South Africa is not a party to it.196 The Court held that this fact
“represent[ed] a clear choice by the legislature not to confer blanket
immunity on AU bodies, meetings and officials that attend them.”197 In
this regard, the SCA did not find it necessary to alter the High Court’s
reasoning. It endorsed the High Court’s view that section 5(3) of the
Diplomatic Immunities Act relied upon by the Minister “did not cover
Heads of State or representatives of states attending meetings of the
AU.”198
C. The ICC Act
The most important piece of legislation relevant to this discussion

is the ICC Act, which was enacted in order
[t]o provide for a framework to ensure the effective

implementation of the Rome Statute of the [ICC] in South
Africa; to ensure that South Africa conforms with its
obligations set out in the Statute; to provide for the crime of
genocide, crimes against humanity and war crimes; to
provide for the prosecution in South Africa and beyond the
borders of South Africa in certain circumstances; to provide
for the arrest of persons accused of having committed the
said crimes and their surrender to the said Court in certain
circumstances; to provide for co-operation by South Africa
with the said Court; and to provide for matters connected
therewith.199
South Africa was the first African state to domesticate the Rome
Statute.200 The Constitutional Court has dealt with the importance of the
194
Id. para. 28.12.
195
Id. para. 28.13.1–3.
196
Id. para. 28.13.2–3.
197
Id. para. 28.13.2.
198
2016 (3) SA 317 (SCA) at para. 41.
199
ICC Implementation Act supra note 37.
200
Nat’l Commissioner of the South African Police Service v. Southern African Human Rights
Litigation Centre and Another 2014 (1) SA 30 (CC), at para. 33.
ICC Act in South Africa in the National Commissioner of the South

African Police Service case where it had to determine the extent of South
Africa’s duty to investigate crimes against humanity that were committed
outside its borders.201
On immunities, the ICC Act provides that “[d]espite any other law
to the contrary, including customary international law and conventional
international law, the fact that a person . . . is or was a Head of State or
government . . . is neither . . . a defence to a crime, nor . . . a ground for a
possible reduction of sentence once a person has been convicted of a
crime.”202 Some academics have argued that this provision means that
South African courts should have no impediment in prosecuting and
convicting accused persons of international crimes irrespective of their
status.203 As to the apparent conflict between the DIA and the ICC Act,
Professor John Dugard argues that the ICC Act trumps the DIA when it
comes to international crimes.204 Professor Max du Plessis endorses this
view and argues that by including this provision, “South Africa has
attempted to cut its way past [the controversy of immunities accorded to
sitting Heads of State as per the Arrest Warrant Case].” Moreover, du
Plessis contends that the South African courts “are accorded the same
power to “‘trump’ the immunities which usually attach to officials of
government as the ICC by virtue of article 27 of the Rome Statute.”205
The immunities provision is found in the chapter of the ICC Act
that deals with the domestic prosecution of the perpetrators of
international crimes that are found in the Rome Statute.206 It misses the
second part found in article 27 of the Rome Statute which provides
“[i]mmunities or special procedural rules which may attach to the official
capacity of a person, whether under national or international law, shall
not bar the [ICC] from exercising its jurisdiction over such a person.”207
It is unclear why the drafters of the ICC Act decided to leave out this part.
A view led by Professor Dire Tladi is that the provision does not remove
immunities, but “it addresses the criminal accountability of an individual,
that is, the substantive accountability or responsibility, whereas immunity
is a procedural notion applying to the ‘right of a court to entertain a
201
Id. paras. 3–4.
202
See ICC Implementation Act supra note 37, §4(2) .
203
See John Dugard & Garth Abraham, Foreign Policy and International Relations, 2002 ANN.
SURV. S. AFRICAN L. 140, 165-166 (2002) (arguing that this provision was a choice by the drafters of
the ICC Act to move away from the Arrest Warrant Case, supra note 65).
204
JOHN DUGARD, INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE 257 (2011).
205
Max du Plessis, South Africa’s Implementation of the ICC Statute, 5 J. INT’L CRIM. JUST. 460,
474 (2007) .
206
See Chapter 2 of the ICC Act titled ‘Jurisdiction of South African Courts and Institution of
Prosecutions in South African Courts in respect of Crimes’.
207
Rome Statute, supra note 6, Art 27(2).
matter.’”208 In other words, the provision “removes official capacity on a

substantive defense to the commission of crimes but does not address the
matter of immunity.”209 Tladi’s argument is that a Head of State entitled
to immunities would not be arrested in the first place since the domestic
courts would not have had jurisdiction to do so. This argument was
raised by the South African government in the SALC case in the SCA,
where it contended that section 4(2) “has nothing to do with immunity
from arrest in terms of the ICC arrest warrants, but precludes immunity
being advanced as a defense or in mitigation of sentences. It does not
remove the immunity that a Head of State enjoys from arrest in South
Africa.”210
The SALC on the other hand, argued that the ICC Act’s purpose is
“to give effect to South Africa’s accession to the Rome Statute and South
Africa’s obligations [that derive from that].”211 The SCA agreed with the
SALC and reasoned as follows:
A construction of section 4(2) that would exclude claims of

immunity if a person was being tried before a South African
Court, but would not exclude immunity in seeking to bring
that person to trial before that Court would … be a serious
anomaly. The ordinary principle of interpretation is that the
conferral of a power conveys with it all ancillary powers
necessary to achieve the purpose of that power. The purpose
of the power to prosecute international crimes in South
Africa is to ensure that the perpetrators of such crimes do
not go unpunished. In order to achieve that purpose it is
necessary for the National Director of Public Prosecutions to
have the power not only to prosecute perpetrators before our
Courts, but to bring them before our Courts. This is also
consistent with the constitutional requirement that the [ICC
Act] be construed in a way that gives effect to South
Africa’s international law obligations and the spirit, purport
and objects of the Bill of Rights.212
The SCA should be criticized for not making a distinction between an

arrest to surrender the head of a third state and an arrest to prosecute a
208
Tladi, supra note 137, at 1038. But see Ventura, supra note 137, at 1012 fn 65, (arguing that
‘[i]t makes little sense for the ICC Act to include a defence that no person could ever realistically rely
upon unless South African courts have jurisdiction over Heads of State in the first place.’)
209
Id.
210
2016 (3) SA 317 (SCA) at para. 50. This argument was not canvassed before the high court.
211
Id. para. 51.
212
Id. para. 95 (footnotes omitted).
Head of State before domestic courts. The ICC Pre-Trial Chamber II has
confirmed the existence of personal immunities for sitting Heads of State
and the role article 98(1) of the Rome Statute plays for the purposes of
arresting and surrendering President Al Bashir to the ICC, and yet it
failed to make the above distinction.213 The SCA itself discussed the
customary international law immunities in great detail, including the DRC
Decision, and confirmed that ordinarily President Al Bashir would be
immune from being arrested and surrendered to the ICC.214 Further, the
SCA has been rightly criticized for concluding that immunities do not bar
prosecution of Heads of States by South African courts—a position that
was held by Belgium before the Arrest Warrant Case.215 The SCA
missed the point of immunities in international law—“that the immunity
from jurisdiction enjoyed by incumbent [Heads of States] does not mean
that they enjoy impunity in respect of any crimes they might have
committed, irrespective of their gravity.”216 Personal immunities are
temporal in nature and once they cease to exist—when the person ceases
to hold office or when their state waives the immunities—the person may
be brought to court to be prosecuted for the heinous international crimes
they have committed.
On the issue of cooperating with the ICC request to arrest and
surrender (to execute the ICC arrest warrant) the accused to the ICC, the
ICC Act states that “[t]he fact that the person to be surrendered is a
person contemplated in section 4(2)(a) or (b) [that is, a sitting or former
Head of State] does not constitute a ground for refusing to issue an order
[to surrender].”217 Again, the ICC Act does not have a provision similar
to article 98(1) of the Rome Statute, which precludes the ICC from
forcing states parties to cooperate if that means such states will breach the
international obligations owed to a third state.218 A possible construction
of this provision of the ICC Act is that there is no bar to President Al
213
DRC Decision, supra note 60, at para. 25.
214
2016 (3) SA 317 (SCA) at para. 85.
215
See Akande, supra note 102 (arguing that this dictum has far reaching effects domestically and
possibly internationally).
216
Arrest Warrant Case, supra note 65, at para 60.
217
See ICC Implementation Act supra note 37 ch. 4, Cooperation with and Assistance to Court
In or Outside South Africa. This chapter includes a part on the procedure for cooperation and surrender
of the accused to the ICC (§§8-13). The term ‘Court’ is defined in this chapter as the ICC.
218
du Plessis, supra note 205, at 476-477, however has argued that ‘if one accepts that under
international law personal immunity attaches to incumbent senior cabinet officials such as Heads of
State, then not only would any prosecution by South Africa under the ICC Act of a current leader of a
country that is not party to the ICC Statute be possibly inconsistent with its (South Africa’s)
obligations under customary international law, but the ICC would also be prevented from requesting
the surrender of that person. This may in fact mean that proceedings against such a person are
effectively precluded. The only exception to this situation would be a waiver of the immunity by the
third state.’ (Footnotes omitted).
Bashir’s surrender to the ICC.219 The SCA rejected the government’s

argument that this provision is catered for a person who was already
arrested in terms of section 8 of the ICC Act (dealing with the procedure
for the arrest) on the grounds that such construction will render section
10(9) of the ICC Act (dealing with no ground for refusal)220 useless as
this means that no Head of State will ever come before courts for the
purposes of section 10(9).221 The problem with this interpretation is that
the SCA, like the DRC Decision, does not make a legal distinction
between a Head of State that is a party to the Rome Statute and a head of
a third state. While I agree that the section will be made redundant by
claiming that all Heads of State may not be arrested and surrendered, it is
reasonable to argue that the Head of State from a third state is precluded
from being arrested and surrendered without a waiver as the Rome
Statute so requires. In fact, the SCA has also conceded that there are
customary international law immunities afforded to sitting Heads of State
not party to the Rome Statute.222
D. South Africa’s Withdrawal from the Rome Statute
From the discussion, and despite the criticism of the SCA judgment
above, the ICC Act takes precedence when it comes to arresting and
surrendering accused persons to the ICC. There was no legal impediment
on the part of South Africa to arrest and surrender President Al Bashir
since section 232 of the Constitution also states that customary
international law is applicable in so far as it does not conflict with the
Constitution or an Act of Parliament.223 This means that the current law
expected the South African government to adhere to the High Court
Order and arrest President Al Bashir to surrender him to the ICC. This
has also been confirmed by the sudden attempt to withdraw from the
Rome Statute by the South African government224 in terms of article 127
219
See also, du Plessis, supra note 205, at 476 arguing that ‘where South Africa chooses to
surrender a high standing official to the ICC, the ICC Act makes clear that whatever immunity might
have otherwise attached to the official does not constitute a bar to the surrender of the person to the
ICC’; and Ventura, supra note 137, at 1010, also arguing that ‘there is no reasonable way to read the
ICC Act’s provisions on surrender and participation with the ICC even when a Head of State is
involved in a way … that [says] that South Africa should not surrender President Al-Bashir or
cooperate with the ICC with respect to his case’.
220
ICC Implementation Act supra note 37 §10(9) stipulates that ‘[t]he fact that the person to be
surrendered is a person contemplated in §4(2)(a) or (b) does not constitute a ground for refusing to
issue an order contemplated in subsection (5)’.
221
2016 (3) SA 317 (SCA) at para. 101.
222
Id. para. 85.
223
See also, Id. para. 62.
224
The Notice of Withdrawal was deposited with the UN Secretary-General on 2016-10-19. See
South Africa formally withdrawing from ICC, SOUTH AFRICAN GOVERNMENT NEWS AGENCY, (Oct.
21, 2016), http://www.sanews.gov.za/south-africa/sa-formally-withdrawing-icc; see also UN confirms
of the Rome Statute.225 To support its position to withdraw from the

Rome Statute, the South African government has argued that the Rome
Statute conflicts with the Immunities Act with regard to the personal
immunities of the sitting Heads of State, which are recognized under
customary international law.226 This argument has been expanded in the
Repeal Bill (the Bill repealing the ICC Act) as follows:
[T]he Republic of South Africa, in exercising its international

relations with Heads of State of foreign countries,
particularly Heads of State of foreign countries in which
serious conflicts occur or have occurred, is hindered by the
Implementation of the Rome Statute of the International
Criminal Court Act, 2002, which together with the Rome
Statute of the International Criminal Court compel South
Africa to arrest Heads of State of foreign countries wanted by
the International Criminal Court for the crime of genocide,
crimes against humanity and war crimes and to surrender
such persons to the International Criminal Court, even under
circumstances where the Republic of South Africa is actively
involved in promoting peace, stability and dialogue in those
countries.227
The South African government has since decided to halt its intention to
exit the ICC by withdrawing the Repeal Bill from Parliament. Thus,
South Africa remains a state party to the Rome Statute and therefore
South Africa is still obligated to arrest and surrender President Al Bashir
should he return to the territory.228 Further, South Africa still has to face
the consequences of failure to cooperate with the ICC when it did not
arrest and surrender President Al Bashir.229 It is likely that the Pre-Trial
Chamber II will apply the DRC Decision to the South African situation
once it deals with the matter, including reporting South Africa to the
SA ICC withdrawal, MSN NEWS (Oct. 22, 2016), http://www.msn.com/en-za/news/featured/un-

confirms-sa-icc-withdrawal/ar-AAjfDDh?li=AA520r.
225
Rome Statute, supra note 6, Article 127(1) states that ‘A State Party may, by written
notification addressed to the Secretary-General of the United Nations, withdraw from this Statute’.
226
Press Conference Statement from Michael Masutha, Minister of Justice and Correctional
Services, ENCA NEWS (Oct. 20, 2016).
227
See Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill,
B23 of 2016, pmbl.
228
Rome Statute, supra note 6, 127(2).
229
South Africa has asked the ICC to delay its findings until South Africa exhausts its internal
appeals of the Al Bashir matter. However, Minister Masutha, on his press statement announced that the
Constitutional Court appeal, supra note 226, will be withdrawn. On April 7, 2017, the ICC Pre-Trial
Chamber II heard the arguments from the ICC Prosecutor and the South African government legal
representatives, see The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-T-2-ENG,
Transcript (Apr. 7, 2017), https://www.icc-cpi.int/Transcripts/CR2017_02211.PDF. The decision has
not yet been handed down.
Security Council as it has done in relation to other states parties.230

Therefore, South Africa still has to face the consequences resulting from
its failure to cooperate with the ICC.
V. CONCLUSION
President Al Bashir has avoided the ICC for seven years and has
been able to travel to both states parties to the Rome Statute and non-
states parties’ territories without any consequences. The existence of
customary international law immunities makes it difficult for the ICC to
discharge its duties without the cooperation by states parties. The silence
by the Security Council and its failure to clarify Security Council
Resolution 1593 on whether it removes Sudan’s immunities equally
makes the ICC’s job difficult.
There is still a need to clarify the role of personal immunities

derived from customary international law, especially considering the
vertical relationships between international criminal jurisdictions and the
potential impact on horizontal relations among states. The ILC is dealing
with this issue and it is hoped that this will settle the matter. The current
position of the ILC is that there exists no customary rule that is an
exception to the existence of customary international law recognizing
personal immunities of sitting Heads of States, although a treaty may alter
this position.
I argued previously, that the Pre-Trial Chamber in the Malawi

Decision failed to attend to the apparent conflict between articles 27(2)
and 98(1) of the Rome Statute.231 I also argued that Malawi was justified
in not arresting and surrendering President Al Bashir to the ICC because
of the customary international law obligations it owed to Sudan, a non-
party state to the Rome Statute. However, the above arguments I used
against the Malawi Decision are not applicable to the South African
situation based on the following reasons. First, the South African
Constitution limited the application of customary international law by
making it subordinate to the Constitution and legislation should there be a
conflict. Secondly, South Africa domesticated the Rome Statute and
made it superior to any other law to the contrary. The ICC Act not only
disregarded personal immunities of sitting Heads of State as per article
230
See, e.g, Prosecutor v. Al Bashir, ICC-02/02-01/09-266, Decision on the Non-Compliance by
the Republic of Djibouti with the Request to Arrest and Surrender Omar Al-Bashir to the Court and
Referring the Matter to the United Nations Security Council and the Assembly of the State Parties to
the Rome Statute (July 11, 2016).
231
Dyani-Mhango, supra note 40.
27(2) of the Rome Statute, but it ensured that customary international law
is not applicable.
The commentators are still not convinced that the Pre-Trial

Chamber is correct in deciding that the conflict between articles 27(2)
and 98(1) of the Rome Statute is resolved by the Security Council
Resolution 1593 waiving Sudanese immunities. The continuous non-
cooperation by states parties to the Rome Statute by failing to arrest and
surrender President Al Bashir also shows that this issue is far from over.
However, no state party has yet appealed the Pre-Trial Chamber to the
Appeals Chamber. We will wait to see if the South African hearing
before the ICC on failure to arrest and surrender President Al Bashir to
the ICC will produce different results.232
232
The Pre-Trial Chamber heard the arguments by the government of South Africa and the ICC
Prosecutor on April 7, 2017. See Prosecutor v. Al Bashir, ICC-02/05-01/09-274, Decision Convening a
Public Hearing for the Purposes of a Determination under Article 87(7) of the Statute with regard to
the Republic of South Africa (Dec. 8, 2016).
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SOUTH AFRICA’S DILEMMA: IMMUNITY LAWS,

I. INTRODUCTION AND BACKGROUND

and three counts of genocide (genocide by killing, genocide by causing

Sudan is not a party to the Rome Statute, which established the

International Commission of Inquiry established that the government

The ICC Prosecutor investigated the Darfur situation to determine

Omar Al Bashir is criminally responsible . . . as an indirect perpetrator or

Upon learning that President Al Bashir was in South Africa, the

international obligations, and arrest and surrender President Al Bashir to

government of South Africa appealed the SCA judgment to the

President Al Bashir’s visit to South Africa to attend the African

I have previously analyzed the strained relationship between the

In the second paper, I scrutinized the Pre-Trial Chamber’s decision

Part I of the article presents a brief background to the events that

II. INTERNATIONAL LAW ON HEADS OF STATE AND PERSONAL

personal immunities accorded to Heads of State under sovereign

According to personal immunity, a senior state official is immune

As discussed above, the current international law position is that

As explained above, article 27(2) abrogates the immunities of

obligations owed to a third state.75 Cooperation by states parties to arrest

A. Two Schools of Thought Resolving the Conflict Between

to President Al Bashir from Sudan—a third state.83 According to this

The alternative view is that because the ICC is prosecuting an

B. The AU’s Response: The Malawi and Chad Decisions

For example, Malawi89 and Chad90 both relied on the “position

The Pre-Trial Chamber noted the apparent conflict between article

states have recognized the exceptions to immunities of the states’ top

Pre-Trial Chamber would deal with the conflict to bring clarity.

C. The DRC Decision Finally Resolved the Tension, But Many

In subsequent decisions, the Pre-Trial Chamber addressed the

The Pre-Trial Chamber II confirmed the existence of customary

customary international law immunities.118 The Pre-Trial Chamber II

However, in the DRC Decision, the Pre-Trial Chamber II found

Secondly, the Pre-Trial Chamber reasoned that the Security

immunities, and consequently there exists no horizontal bar between the

The Pre-Trial Chamber should be commended for finally

The DRC Decision endorses the view by Akande that the UN

bound by a treaty.141 It is also important to note that while Sudan is

To illustrate this point, the Security Council merely refers a

Secondly, it is hard to fathom that the Security Council can

[t]he language of the Security Council resolution should be

Council under Chapter VII of the UN Charter should be in express

When the Security Council, acting under Chapter VII of the

failure on the part of the relevant State Party to the Statute to

It is important that the Security Council clarifies its position on the

Despite the criticisms levelled against the DRC Decision, the

It must be recalled that President Al Bashir visited South Africa to

High Court rendered a judgment. As stated earlier, South Africa has

The FSIA places restrictions on the conferral of immunities on

depending on the case in question.179 The FSIA also recognizes the

The second piece of relevant legislation is the Diplomatic

On the other hand, the South African government argued that it

The Court also held that the discretion of the Minister of

C. The ICC Act

The most important piece of legislation relevant to this discussion