by TourOn Friday a group of South African lawyers lodged a complaint with the country's National Prosecuting Authority (NPA) calling for President Obama's arrest for war crimes, crimes against humanity and genocide when he visits South Africa this month. More specifically, the group - the Muslim Lawyers Association - submitted a docket to South African authorities requesting that President Obama be "investigated, charged, arrested and tried in a South African Court for War Crimes, Crimes against Humanity and Genocide". According to the group's
Press Release:
"The complaint, dubbed the “Obama Docket” encourages South Africa to take seriously its domestic and international obligations and to act against International War Criminals lest they consider South Africa a safe haven and travel here freely with impunity.
In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes. The Complaint asks for Obama’s arrest when he enters South Africa or the securing of his attendance at a trial by other lawful means.
In the alternative, the complaint requires South Africa as a State Party to the Rome Statute, to refer the case to the Prosecutor of the International Criminal Court at the Hague to exercise Jurisdiction in terms of the Rome Statute.
The Obama administration’s Drone programme which has resulted in massive losses of innocent lives in Pakistan, Yemen and Afghanistan. The programme is responsible for extra-judicial killings both innocent civilians as well as US citizens abroad. The drone strike policy has continued unabated with total disregard for territorial sovereignty and this is cited as the primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide.
The large number of well documented civilian deaths are said to constitute international crimes and the complaint refers to numerous International Reports which have documented evidence on the USA drone policies. Other crimes cited include extra judicial renditions and torture. "
Having not had sight of the "Obama Docket" its difficult to speculate about its chances of success. Nevertheless, a few preliminary points are worth making:
First, this is not the first time that civil society organisations have submitted "dockets" to the NPA with a view to triggering investigations into international crimes under South Africa's
ICC implementing legislation (the ICC Act) - although its certainly the most high profile. To date, dockets have been submitted in respect of alleged war crimes and crimes against humanity in
Gaza,
Zimbabwe and
Madagascar. While the first was not successful, the latter two were (to varying degrees). The NPA initially refused the request to open an investigation into the Zimbabwe Docket, but the litigants (the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum) managed to get the refusal declared unlawful by the High Court, which ordered that it be reconsidered (the decision has been taken on appeal). The Madagascar case was more straightforward, the NPA agreed to open an investigation following the submission of the docket without much difficulty. The difference between the NPA's handling of the two cases can be partially explained by the presence of the suspect in the Madagascan case in South Africa (former President Marc Ravalomanana), whereas the Zimbabwe docket requested an investigation in respect of suspects whose presence in South Africa was 'anticipated'. The main contention on appeal in the latter case is whether the presence of an accused is a legal requirement in order for an investigation to be opened under South Africa's ICC Act. (See discussion
here). The short point is that this recent request is not as "left field" as international observers might think; these requests have been acceded to in the past.
The second, related point worth making is that the reason that these requests have been successful in the past is that the evidentiary threshold for triggering an investigation under the ICC Act is quite low: "reasonable basis to believe". This was one of the upshots of the Zimbabwe Docket litigation, where the High Court found that the same standard applies for domestic investigations as for the initiation of an investigation by the ICC Prosecutor under the Rome Statute (see article 53(1)(a)). This threshold was later applied in respect of the Madagascar docket and was instrumental in its success. Again, while we don't know what evidence the "Obama Docket" contains, its worth noting that the threshold it needs to meet in order to trigger an investigation is fairly low.
What is more, its worth noting that the High Court in the Zimbabwe Docket case found that
"[W]hen an investigation under the ICC Act is requested, and a reasonable basis exists for doing an investigation, political considerations or diplomatic initiatives, are not relevant at that stage having regard to the purpose of the ICC Act."
This brings us to the third point which concerns the question of President Obama's immunity as a serving Head of State. The MLA Press Release blithely notes: "In terms of the ICC Act, diplomatic immunity is not a defence and a Head of State is not immune from prosecution for the aforementioned crimes". The provision being referred to here is section 4(2)(a) of the ICC Act which states:
“[Notwithstanding] any other law to the contrary, including customary and conventional international law, the fact that a person […] is or was a head of State or government, a member of a government or parliament, an elected representative or a government official […] is neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime”.
Most commentators have interpreted this provision as removing diplomatic immunity in respect of prosecutions under the ICC Act. The High Court in the Zimbabwe Docket litigation accepted this interpretation, noting: “the ICC Act itself denies explicitly diplomatic immunity to government officials accused of committing ICC Act crimes”. This, if correct, would place South Africa’s ICC Act in conflict with the ICJ’s Arrest Warrant decision.
However, as I’ve argued
elsewhere, section 4(2)(a) is clearly modeled on article 27(1) of the Rome Statute – which deals with the irrelevance of official capacity as a defence or as a ground for the reduction of sentence – and not article 27(2), which deals with personal immunity. Therefore, while 4(2)(a) of the ICC Act may effectively remove functional immunity, it does not address personal immunity which remains in place under the ICC Act, and in compliance with customary international law.
As far as the substance of the docket is concerned, the Press Release is too general to usefully discuss the merits thereof. However, the reference to the "drone strike policy" as being the "primary reason that Obama should be investigated and tried for War Crimes, crimes against humanity and genocide" is interesting. The use of drone per se is not illegal (quite the contrary perhaps - see Frederic Megret's
interesting essay on this subject). That said, serious concerns have been raised about the use of "signature strikes" - more specifically the use of certain "signatures" that may well violate IHL - which constitute the overwhelming number of drone strikes by the US. On this point see Kevin Jon Heller's excellent, new
essay. Rather fortuitously, Kevin is in South Africa at the moment and will be talking about the legality of signature strikes at an
event in Johannesburg on Thursday. Perhaps the NPA should be encouraged to attend.
We will have to wait for more information on the docket to become public, but at this point it is clear that the Obama team should take it seriously given the low threshold it needs to meet in order to trigger an investigation under the ICC Act and the past success of similar initiatives. However, even if it is enough to trigger an investigation President Obama should, on a correct interpretation of the ICC Act, still be afforded immunity from arrest as a Head of State.
