JURIST Guests Netsanet Belay and Solomon Sacco of Amnesty International discuss two recent cases in which states have used diplomatic immunity as a pretext for not executing arrest warrants for visiting public officials who are wanted for crimes under international law, thereby upholding impunity for serious crimes….

Two cases in the last couple of weeks have shown the hypocrisy of states that rely on international rules of immunity to entrench impunity for serious crimes committed in conflict-torn nations across the world. While the nature of the charges against the two suspects differ, in both cases the governments chose to extend immunity where they were not obliged to do so. These two cases are those of Israeli opposition politician Tziporah Livni, who was granted special mission immunity while in the United Kingdom on what was effectively a private visit, and Sudanese President Omar Bashir, who was not prevented from fleeing South Africa despite a court order from the country’s highest court and two open ICC arrest warrants against him for his alleged role in genocide, crimes against humanity and war crimes in Darfur.
Immunity acts as a procedural bar to proceedings, preventing judicial inquiry into the veracity of both the allegations against the suspect and of the propriety of the decision to grant immunity. Its use by governments across the world feeds an ingrained culture of impunity for serious crimes under international law, including war crimes, crimes against humanity and torture.

In London, activists sought an arrest warrant for Livni, who was Foreign Minister at the time of the 2008—2009 war in the Gaza Strip, also referred to as Operation Cast Lead.

The legal background is that in 2009 an arrest warrant was issued prior to a scheduled visit by Ms. Livni to the UK but was never executed as she ultimately decided not to travel to London. However, in 2011, an application for an arrest warrant on the basis of war crimes allegations was rejected on the grounds that Ms Livni enjoyed special mission immunity. In June this year she again travelled to the UK apparently to attend the Fortune Most Powerful Women International Summit, which amounts to a visit in her private capacity, and another attempt was made to issue a warrant for her arrest. It was reported that the application for the arrest warrant was rejected on the basis that Ms Livni enjoys (special mission) immunity.

In addition to speaking at the summit, Ms Livni allegedly held informal meetings with UK officials. She appeared to be aware of the likelihood that an application for an arrest warrant in her name would be made and seems to have sought these meetings purely to avail herself of special mission immunity. Granting special mission immunity to Ms. Livni was not required by international law. It was a conscious choice made by the government of the United Kingdom. This illustrates the extent to which special mission immunity is vulnerable to abuse by both the sending and receiving state for the benefit of persons suspected of committing serious crimes under international law.

It appears that the only reason for the UK Government’s decision to extend immunity was to protect a suspect from an allied nation from accountability for alleged crimes under international law.

The Livni imbroglio in particular undercuts the UK’s express commitment to universal jurisdiction and prevents judicial scrutiny by its own courts of the alleged commission of international crimes. By granting immunity to Ms. Livni, the UK Government has been complicit in creating impunity for international crimes. In contrast, recent proceedings in the High Court of South Africa (North Gauteng High Court, Pretoria), with respect to Sudanese President Bashir show both a positive judicial determination of immunities and a more blatant example of executive abuse.

President Bashir travelled to South Africa, a state party to the Rome Statute of the International Criminal Court (ICC), to attend an African Union (AU) summit. The South African government advised the High Court that following their agreement to host the AU Summit, the Sudanese Government requested confirmation of Bashir’s immunity. South Africa’s Cabinet met to discuss the same, took advice from the Chief State Law Advisor and decided that, as host country of an AU summit, it was first and foremost obliged to uphold and protect the inviolability of President Bashir and, accordingly, decided not to arrest him while he was attending the AU Summit.

Apparently in an attempt to protect President Bashir from arrest, and shortly before the summit, the South African Government issued a Government Notice, purporting to provide for immunities and privileges in accordance with the South Africa – AU agreement governing the June AU Summit (which included immunities for all delegates to the AU summit). Like the United Kingdom, South Africa was not under any international obligation to confirm immunities for President Bashir. This is in contrast to what Malawi did in June 2012 when it refused to confirm President Bashir’s immunities resulting in the July 2012 summit of the African Union being moved to Ethiopia. South Africa’s decision to grant immunity to President Bashir was made despite the reasonable suspicion that he holds criminal responsibility for innumerable atrocities in Darfur. South Africa conceded in court that if President Bashir had traveled to South Africa for any other reason than attending the AU summit they would have had to arrest him.

Indeed, there are two ICC arrest warrants against Bashir for his alleged role in genocide, crimes against humanity and war crimes in Darfur. The South African Government was, while he was on its territory, under an obligation to arrest and surrender him to the ICC. There was no doubt or ambiguity as to this obligation. The South African Government was obliged to arrest and surrender President Bashir on the basis of domestic legislation, its constitution and its obligations under the Statute of the ICC. Further, on 12 June, at South Africa’s request, representatives of the South African Government in The Hague met with an ICC judge and representatives of the Court’s Office of the Prosecutor and Registry. It was explained to the South African representatives that “there is no ambiguity in the law and that the Republic of South Africa is under the obligation to arrest and surrender to the Court Omar Al Bashir.&#8221[PDF]

The Rome Statute expressly excludes immunities and no person who is accused by the court and who is from a state party to the Rome Statute can plead immunity. However, Sudan is not a state party to the Rome Statute. Nonetheless, the ICC has, in a number of decisions, albeit on different grounds, held that Bashir does not have immunity under international law and has held that all ICC member states are obliged to comply with the arrest warrants, arresting and surrendering him to the court.

In 2011, President Bashir travelled to Malawi, an ICC member state, to attend a summit of the Common Market for Eastern and Southern Africa (COMESA). The failure of the Malawian authorities to arrest and surrender the Sudanese leader to The Hague prompted the court to issue a decision [PDF] regarding Malawi’s non-compliance with the court’s request for Bashir’s arrest and surrender. Pre-Trial Chamber I was required to consider an argument that the Rome Statute includes two conflicting articles: Article 27(2), which removes immunities for Heads of State for the purposes of ICC proceedings, and Article 98(1), which implicitly allows immunities to subsist on the basis of customary international law by stipulating that a state is not required to comply with a request for surrender or assistance that would contravene its obligations regarding immunity under international law, unless that State consents to waive that immunity. The Chamber effectively held that Article 27(2) enjoys precedence over Article 98(1). The Chamber’s decision, that Bashir did not enjoy immunity, is founded on the basis that there is a customary international law exception to immunity.

In 2014, President Bashir again travelled to a COMESA summit held on the territory of another State party to the Rome Statute—this time the Democratic Republic of Congo (DRC). The Court again issued a decision [PDF] as to the DRC’s cooperation (or lack thereof) regarding Bashir’s arrest and surrender to the Court. The same conclusion was arrived at as in the Malawi decision, however, it was reached by a different line of reasoning. Pre-Trial Chamber II held that by referring the situation in Darfur to the ICC, the Security Council decided that the Sudanese Government would cooperate with and provide any necessary assistance to the court. The Court interpreted [PDF] this as, inter alia, lifting immunities on the basis that any other interpretation of the Security Council referral would render the latter “senseless.” Accordingly, the court held that Sudanese cooperation, by waiving Bashir’s immunity, was “already ensured.”by means of the Security Council referral—the Security Council “implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State.”

It was apparently conflicting obligations that the South Africa High Court was asked to determine when an application was made for President Bashir’s arrest. Ultimately, the High Court held that the South African Government had an obligation under its domestic law, its constitution and international law to arrest President Bashir. However, by the time the decision was handed down, President Bashir had already left the country, in apparent violation of a court order that the South African Government not let him leave until the court case had been finalized.

There will be fierce academic debate about the decisions of the South African High Court, as there has been with decisions of the ICC itself on immunity. Leading the debate are Dapo Akande and Paula Gaeta. Akande posits that the removal of immunity effected by the Rome Statute applies at both the international and national level, and further, that the effect of the Security Council referral of the situation in Darfur to the ICC is that Sudan is “to be regarded as bound”by the Rome Statute. Gaeta, in contrast, argues that an ICC request to its member States to arrest and surrender Bashir is contrary to immunity under customary international law unless a waiver is granted by the third State in question, a right enshrined by the Rome Statute; that such a request by the Court is ultra vires; and, that States party to the Rome Statute are not bound to comply with such a request.

Nonetheless, there can be no debate that, by failing to arrest President Bashir and surrender him to The Hague South Africa violated its obligations under the Rome Statute. Further, by apparently allowing him to leave the country in defiance of a court order the South African Government violated the rule of law and contributed to impunity for atrocities in Darfur.

Ultimately, therefore, the positions adopted by the governments in South Africa and the UK are similar – through the self-interested geopolitical interests of the executive, the courts have been prevented from ensuring and enabling justice for victims of crimes under international law. This is shameful. Worse than this—both South African and the United Kingdom made conscious decisions to protect suspects of crimes under international law from judicial scrutiny. That is the very definition of impunity. The only ray of sunshine is that the South African judiciary was able to stand up against the abuse of immunity and hopefully more courts will take a principled stand against impunity.

(The opinions expressed in this article are those of the authors and do not represent the views of any organisation with which they may be associated.)

Mr. Netsanet Belay is Africa Director, Research and Advocacy, and Solomon Sacco is a Senior Legal Adviser at Amnesty International

Suggested citation: Netsanet Belay and Solomon Sacco, Using Immunity to Entrench Impunity, JURIST – Professional Commentary, July 11, 2015, http://jurist.org/professional/2015/07/netsanet-sacco-immunity-ICC.php.