In its judgment, the court concluded that the conduct of government in failing to take steps to arrest and detain, for surrender to the International Criminal Court (ICC), the President of Sudan, Omar al-Bashir, after his arrival in South Africa in June 2015, was inconsistent with its obligations under the Rome Statute, when read with section 10 of the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (the ICC Act). The government, it held, acted unlawfully.
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 Mr al-Bashir.
The HSF is pleased with the outcome, and wishes to commend the Southern African Litigation Centre for bringing this important matter to the court’s attention.
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