Vonnisbespreking: Implementering van die internasionale strafhof se lasbriewe vir die inhegtenisname van die Soedannese president Omar Hassan Ahmad al-Bashir

Abstract

On 15 March 2016 the supreme court of appeal (SCA) confirmed the high court's earlier judgment in which it held that the government had breached its obligations under the Rome Statute and the Implementation Act by failing to arrest and detain for surrender to the international court (ICC) Sudanese President Al-Bashir. The question before the high court, answered in the negative, was whether a cabinet resolution coupled with a ministerial notice that sought to grant immunity to Al-Bashir for the duration of the African Union summit that took place in Johannesburg from 7 to 15 June 2015 was capable of suspending the government's duties as described above. On appeal the government based its argument on immunity ratione personae under customary international law as embodied in section 4(1)(a) of the Diplomatic Immunities and Privileges Act. In response the Southern Africa litigation Centre (SALC), the respondent in the appeal and applicant in the high court, argued that the provisions of section 27(2) of the Rome Statute and sections 4(2) and 10(9) of the Implementation Act dealt specifically with these issues, in particular the waiver of immunity, and affirmed South Africa's obligation to arrest and surrender Al-Bashir. Secondly, the SALC joined issue with the government on whether or not the rules of customary international law afforded immunity to a head of state charged with international crimes before the ICC. The SCA was unable to hold that at that stage of the development of customary international law there was an international crimes exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries and before foreign national courts. The SCA ended its consideration of customary international law without considering the effect of Security Council resolution 1593 that had referred the situation in Sudan to the ICC and turned to domestic law, which provided the ratio of the decision and found in favour of the respondent, dismissing the government's appeal, whereafter the government appealed again, this time to the constitutional court.