On 23 June 2015, the Gauteng Division of the High Court of South Africa issued its decision Southern African Litigation Centre v Minister of Justice and Constitutional Development and Others. The case considers the Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (Rome Statute Act) with regard to the arrest of a Head of State against whom a warrant of arrest has been issued by the International Criminal Court.
In June 2015, Omar Hassan Ahmad Al Bashir, President of the Republic of Sudan arrived in South Africa to attend the African Union Summit of Heads of States. Following his arrival, the Southern African Litigation Center sought an application before the Court seeking an order compelling South African officials to arrest President Al Bashir, on the basis of its obligation under the Rome Statute Act. The respondent opposed the application, noting that all participants attending the African Union Summit enjoy full immunity from arrest.
According to the respondent, the General Convention on the Privileges and Immunities of the Organization of African Unity (‘OAU Immunities Convention’) affords immunity to ‘members of the Commission, staff members and other representatives of intergovernmental organizations’ attending AU meetings. Pursuant to this, the South African Minister of International Relations and Cooperation entered into a host agreement with the AU and exercising her discretion in terms of the South African Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA) published a notice in the Government Gazette on 5 June 2015 according immunities to parties attending the AU Summit as per the OAU Immunities Convention. The respondent argued that this notice is the basis of immunity being given to President Al Bashir.
The Court considered the immunities regime in South Africa noting that, in the terms of article 4 of the DIPA, heads of States are immune from prosecution only to the extent afforded by customary international law. Moreover, the DIPA does not domesticate the OAU immunities Convention that South Africa has not ratified. Thus, AU staff do not automatically have immunity and the OAU Immunities Act is not automatically applicable. In addition, the notice published by the Minister in the Gazette affords immunity in so far as the OAU immunities Convention does, that is, to ‘members of the Commission, staff members and other representatives of intergovernmental organizations’. It does not afford immunity to Member States or their delegates. As such the notice does not grant immunity to heads of States. Therefore, the only basis on which President Al Bashir could claim immunity is customary international law, which is excluded given that the Rome Statute Act excludes immunity for heads of State. Consequently, the Court held that President Bashir did not enjoy immunity on any of the grounds listed by the respondent. In any event, the Minister may not exercise its discretion in a manner that would be unlawful and contrary to South Africa’s domestic and international obligations. The Rome Statute Act enables the prosecution of customary international law crimes and its provisions enjoy pre-eminence in South Africa’s constitutional regime. The Minister’s notice and the agreement entered into with the AU could not possibly trump these obligations. Therefore, the Court ordered that South African officials are obliged to arrest President Al Bashir.
The South African government has applied for leave to appeal the decision.
Related case law: Minister of Justice and Constitutional Development v The Southern African Litigation Centre, Supreme Court of Appeal, 15 March 2016