Omar Al Bashir & the ROME Statute: A brief account on the S.A litigation

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A few years ago, a critical Op-ed was penned the former President of the Republic of South Africa, Thabo Mbeki  and Mahmood Mamdani– on the subject matter:  addressing the bias surrounding African heads of State, held by the International Criminal Court ‘’ICC’’ and enforced by its treaty, the Rome Statute Broadly speaking, International law.

There have been various debates on what International Law is, and what it isn’t, and whether or not it is a sophisticated form of law – which is another area of vast, exciting debate in its own right. The subject matter of this post however, is the timeline of events following the visit of Sudanese President Omar Al Bashir in June 2015, for the AU Summit – and the litigation that ensued soon after due to South Africa’s obligations as per the Statute.

’Omar Al Bashir not above the Law

– Trengrove SC


June 2015, Sudanese President Omar Al Bashir enters the republic  to attend AU Summit – South Africa being a signatory to the Statute was obliged to arrest, or hand him over to the ICC where he’d be prosecuted for said crimes.

Southern African Litigation Centre (SALC) takes Government to court – The Pretoria High Court issues interim order to bar Bashir from leaving the republic, yet in an almost theatrical fashion despite the order of court, Bashir leaves. Court calls Government’s move to allow the exit of the head of state ‘’unconstitutional’’, which lead to a bevy of headlines on the matter.

August 14, the State files for leave to appeal the High court decision. State’s case hinged on the argument that the court erred in asking:

whether a Cabinet resolution coupled with a ministerial notice is capable of suspending the country’s duty to arrest a head of state’’, when it should’ve rather asked: whether there was a duty to arrest a serving head of state under South African law at all. And, if such duty exists, the courts should have asked whether any countervailing duties exist, and how to resolve any potential disputes between these two duties.

September 2015, the High court dismisses the application for leave to appeal. Citing that the matter was now moot, and didn’t show prospects of success. State then petitions SCA for appeal, at the appeal, the Helen Suzman Foundation argued that, the #Constitution places a further burden on the state, to ensure persons accused of crimes against humanity are brought to task .

The international community tends to focus on criminalizing the perpetrators of violence

– Mamdani, Mbeki


The court dismissed the state’s appeal, on the basis that Bashir’s diplomatic immunity was removed by section 10(9) of the Implementation Act of the Rome Statute. It found that the failure to arrest and detain Bashir and surrender him to the ICC was unlawful, and consequently, unconstitutional.

It has certainly made for robust discourse on International and domestic law in our shores. Browse the SCA Judgement here:

It is absurd to argue you can only arrest a head of state accused of international crimes by ICC if he waives his immunity

. – Trengrove SC

South Africa under a legal duty to respect the personal immunity of a serving head of a foreign state

. – Gauntlet SC

Further Reading:

For a comprehensive list of the countries who have ratified the statute:

Opinion Piece:

Courts Can’t End Civil Wars

– Mamdani, Mbeki

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