Karel | Mar 29, 2018

The court held that particular sections in the ICC Act exclude the immunity heads of state have under customary international law in relation to international crimes and the obligations of South Africa to the ICC. Without this immunity, it held, the government had an obligation to arrest, detain and then surrender Mr al-Bashir to the ICC.

The Helen Suzman Foundation (HSF) was admitted as amicus curiae by the Supreme Court of Appeal. As noted by the court, the HSF made wholly distinct submissions that “were of great value in dealing with the case”. The submissions emphasised the importance of the Constitution in construing our domestic obligations. The court’s recognition of the value of these arguments is encouraging, for we continue to maintain that the duty of the state to detain, arrest and prosecute international criminals is sourced in the Constitution itself.

As such, even if government were to withdraw from the ICC, as it has indicated that it will, or perhaps amend the ICC Act in an effort to escape the narrow confines of the Supreme Court of Appeal’s judgment, the state would nonetheless have a duty to detain, arrest and prosecute individuals like al-Bashir