My contribution to the African Study Group meeting (see below) focussed on the issue of immunity under the implementation legislation of Kenya, Uganda and South Africa: insofar as both cooperation with the Court and domestic prosecutions are concerned. The question of immunity and cooperation is clearly of imminent concern given the arrest warrants that have been issued for al-Bashir and Gadhaffi. Although I will be refining my paper over the next few weeks, here are my preliminary views on the issue of immunity vis-a-vis cooperation under each of the implementation acts:
South Africa’s Rome Statute Act (2002)
South Africa’s Rome Statute Act (2002) is silent on the relevance of immunity in relation to cooperation requests from the ICC. Contrary to Kenya and Uganda’s implementing legislation, the Rome Statute Act’s immunity provision focuses on the impact of immunity in domestic prosecutions and makes no mention of immunity in relation to cooperation with the ICC.
In terms of section 8 of the ICC Act, when South Africa receives a request from the ICC for the arrest and surrender of a person for whom the ICC has issued a warrant of arrest, it must refer the request to the Director-General of Justice and Constitutional Development with the necessary documentation to satisfy a local court that there are sufficient grounds for the surrender of the person to The Hague. As we shall see when we consider Kenya and Uganda’s implementation legislation, this is the point at which the question of article 98’s application would arise, however the Rome Statute Act (2002) makes no mention of article 98. It merely directs the Director-General to forward the request (along with the necessary documentation) to a magistrate who must endorse the ICC’s warrant of arrest for execution in any part of the Republic.
It is worth noting that in practice the South African government has taken the position that immunity is not a bar to cooperation, as evidence by the belated (and begrudging) revelation that the al-Bashir arrest warrant had been endorsed by a South African magistrate, is active in the Republic and that President al-Bashir would be arrested should he be present in the Republic. At no point was mention made of article 98.
Kenya’s International Crimes Act (2008)
In contrast, Kenya’s International Crimes Act (2008) specifically addresses the relevance of immunity in relation to cooperation requests. Section 27(1) thereof – titled ‘Official capacity of person no bar to request’ – states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person shall not constitute a ground for (a) refusing or postponing the execution of a request for surrender or other assistance by the ICC; (b) holding that a person is ineligible for surrender, transfer, or removal to the ICC or another State under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC”. However, section 27(1) is subject to the provision of section 115 of the Act, which addresses 'Requests involving conflict with other international obligations'. In terms of this section: “If a request by the ICC for assistance to which this Part applies concerns persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement, the Attorney-General shall inform the ICC to enable it to direct its request to the other State or international organization”. The provision goes on to state that the Minister may postpone the request for assistance in such circumstances.
These provisions of Kenya’s International Crimes Act are interesting for a number of reasons:
First, the Act (section 115) expressly refers to article 98 of the Rome Statute and in doing so it arguably adopts an interpretation of the article 27/98 relationship that implicitly rejects the article 27 waiver argument adopted by most academics. (See Akande, ‘International Law Immunities and the International Criminal Court’, 98(3) AJIL (2004), 407-433). Section 115 is by no means perfect, it appears to conflate article 98(1) and article 98(2) by referring to requests relating to “persons who, or information or property that, are subject to the control of another State or an international organisation under an international agreement”. This is different from article 98(1) which refers to “obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State”. What is more, the reference to persons, property or information “subject to the control of another State” is novel and potentially casts the net far wider that traditional immunity ratione personae. However, these difficulties aside, section 115 clearly does not distinguish between persons coming from states parties to the Rome Statute, as the article 27 waiver argument requires. Notably, other implementing acts do make such a distinction. In terms of the United Kingdom’s International Criminal Court Act (2001), “[a]ny state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings… [related to arrest and surrender] in relation to that person”. In contrast, where “state or diplomatic immunity attaches to a person by reason of a connection with a state other than a state party to the ICC Statute” a waiver must be obtained from the state or organization concerned.
Second, the Act charges the Court with making a request to the “third state” or organization. This will be done in terms of Rule 195 of the Court’s Rules of Procedure and Evidence, which states that “[w]hen a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98”. What happens thereafter is not clear from the wording of section 115. The most coherent reading suggests that if the request is refused by the third party and the Court decides not to proceed with the original request, then Kenya shall refused the original request for assistance. If the Court nevertheless decides to proceed with the original request regardless, the Kenya shall accede to it provided that “there is no other ground for refusing or postponing the request”. This suggests that Kenya considers itself bound by the Court’s decision in such circumstances.
Finally, Kenya’s immunity provision makes it clear that personal immunity shall not be a bar to surrender of a person to another state as well, not merely the ICC. In this respect it might go beyond what is permissible under customary international law by allowing Kenya to extradite an official who would otherwise enjoy immunity at the request of a third country. In terms of the ICJ Arrest Warrant decision this would definitely amount to a violation of Kenya’s obligations under customary international law to the ‘sending state’.
Uganda’s ICC Act (2010)
Uganda’s ICC Act (2010) addresses the immunity of immunity in articles 25 and 26. Article 25(1), titled ‘Official capacity of person no bar to request’, states that “[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person is not ground for – (a) refusing or postponing the execution of a request for surrender or other assistance made by the ICC; (b) holding that a person is ineligible for arrest or surrender to the ICC under this Act; or (c) holding that a person is not obliged to provide the assistance sought in a request by the ICC.” This is a carbon-copy of section 27 of Kenya’s Rome Statute Act (2002), with the exception of the reference to surrender to other states.
In terms of article 25(2) of Uganda’s ICC Act (2010), this section is made subject to section 24(6) which states:
“If the [Justice] Minister is of the opinion that the circumstances set out in article 98 of the [Rome] Statute apply to a request for provisional arrest, arrest and surrender or other assistance, he or she shall consult with the ICC and request a determination as to whether article 98 applies.”
There are obvious similarities between this provision and Kenya’s correlative provision. Both address immunity ratione personae (i.e article 27(2) of the Rome Statute) in relation to cooperation requests rather than domestic prosecutions (in almost identical terms).
Further, like Kenya, Uganda makes this provision subject to article 98 of the Rome Statute through section 24(6) but makes no distinction between requests relating to state parties to the ICC and those not party. In this respect it contradicts, or at least does not confirm, the article 27 waiver argument in the same way that Kenya’s legislation does.
How section 24(6) will operate however is not clear ex facie. The provision grants the Minister the discretion to consult with the ICC and request a determination as to whether article 98 applies. This consultative process is closer to article 97 of the Rome Statute which provides that states must “consult with the Court without delay” if they receive a request from the Court “in relation to which it identifies problems which may impede or prevent the execution of the request”. Although the article goes on to list what some of these problems might be, the list is clearly illustrative and not exhaustive. The obvious question is to whom might the Justice Minister consult? In terms of section 3 of the ICC Act – which contains definitions – reference to ‘the ICC’ includes any of the organs of the Court (i.e. the Prosecutor, the Registry, Chambers or the Presidency). The request for “a determination” aspect however is closer to the procedure under article 98. Presuming this is the procedure that the Ugandan legislators where referring to then requests for a determination under section 24(6) of the ICC Act will be directed to the Court who will then make a determination on its applicability in the circumstances. Finally, unlike Kenya, Uganda chose to exclude extradition to “other States” from this procedure.