As a starting point, it is important to bear in mind that these two cases – while being strikingly similar at first glance – are playing out in different areas of law. The question of diplomatic immunity in relation to President al-Bashir falls within the bounds of international law, that is, the law regulating relations between states. The decision to grant Ms Mugabe immunity has not crossed the threshold into international law because it remains a domestic case in South Africa even though it has implications for international relations.
When diplomatic issues arise, it is always tricky to cognitively disentangle them from international law, particularly given that they quite often overlap. However, it is important to do this given that different implications arise in domestic legal issues which raise questions in relation to diplomacy and international legal issues. While domestic arrest warrants may, in some cases, operate internationally, this does not make them equivalent to International Criminal Court-issued (ICC) arrest warrants.
The ICC previously issued two warrants of arrest for President Omar al-Bashir on charges of crimes against humanity and genocide. There was no diplomatic immunity to be granted to him because, according to the ICC, Sudan falls within the Rome Statute due to the referral of the situation in Darfur by the United Nations Security Council. Therefore, because Sudan and President al-Bashir could not validly claim diplomatic immunity, there was a legal duty on South Africa to arrest President al-Bashir (see our previous alert on the ICC’s judgment on this issue).
In Ms Mugabe’s case, she has been charged with assault with intent to do grievous bodily harm in South Africa and under South African law. Her status as President Robert Mugabe’s wife raises international relations issues, but not necessarily international law issues per se. It is not immediately apparent that her alleged conduct falls within the bounds of the Rome Statute of the International Criminal Court.
It is easy to think that these charges are not as serious as those levelled against President al-Bashir, and that this may have something to do with the way we approach the two cases. However, at this point it is prudent to caution that in analysing the distinctions between President al-Bashir’s situation and Ms Mugabe’s, the severity of the accusations against the latter must not be de-emphasised. Any form of alleged violence, particularly against women, is grave. Therefore, the two situations cannot be distinguished on this basis alone.
However, the importance in some kind of distinction may lie in the different originating points of the warrants. Once within the ICC’s jurisdiction, diplomatic immunity may no longer be claimed. This is not necessarily the case in respect of an arrest warrant issued in South Africa under domestic law. This is, however, a legal issue that may need to be determined by the South African courts in the pending challenges to the decision to grant immunity to Ms Mugabe launched last week.
In closing, it must be emphasised that the purpose of this alert was to assist with a foundational understanding on the current situation. At this stage, we make no comment on the merits of any pending or potential litigation in relation to these issues.