South Africa’s submission to the International Criminal Court (ICC) regarding the matter of President Al Bashir of Sudan

5 October 2015

South Africa hosted the African Union (AU) Summit of Heads of State and Government in Johannesburg from 14 to 15 June 2015. The AU invited Heads of State and Government of all AU Member States, including President Omar Al Bashir of Sudan, to attend the Summit.

The International Criminal Court has issued two warrants of arrest for President Al Bashir. Prior to the Summit, acting on the possibility that President Al Bashir may attend it, the Court wrote to the South African Government, stating that it was under an obligation to arrest President Al Bashir and surrender him to the Court, should he attend the Summit, also inviting it to consult with the Court in terms of Article 97 of the Rome Statute. Article 97 provides that where a State Party to the Rome Statute that established the Court receives a request for cooperation to which it identifies problems which may impede or prevent the execution of the request, the requested State shall consult with the Court in order to resolve the matter. 

Recognising that South Africa was faced with possible conflicting obligations with respect to the request for arrest and surrender from the Court and the immunities that international law accords to serving Heads of State and Government, as acknowledged by Article 98 of the Rome Statute, South Africa then approached the Court with a view to consult with it in terms of Article 97.

However, what was interpreted by South Africa to be a diplomatic and political process, was morphed into a judicial process based on an urgent application by the Prosecutor of the Court for an order on the South African obligations to the Court. South Africa was unfortunately not afforded the opportunity to present legal arguments on this application, and hence it is of the view that the principles of justice were not adhered to. In view of the above, South Africa is of the view that a serious infringement of South Africa’s rights as a State Party has taken place and that the Court has acted against the letter and spirit of the Rome Statute. 

After President Al Bashir arrived in South Africa, an application was made to the North Gauteng High Court to compel the South African authorities to arrest him. President Al Bashir left South Africa before the order could be executed and the Court made a finding that the Government’s failure to arrest him was unconstitutional. The Government is in the process of seeking leave to appeal against this finding.

The International Criminal Court has since requested South Africa to make submissions to it by 5 October 2015, its “views of the events surrounding Al Bashir’s attendance of the African Union Summit, with particular reference to their failure to arrest and surrender Al Bashir”. The request was made with a view to assess whether South Africa was in breach of its obligations to cooperate with the Court.

South Africa has now approached the Court for more time to respond to this request. This was done in view of the complex and conflicting legal principles involved, both in international and in South African domestic law, and the fact that the South African domestic courts are still seized with the matter.

South Africa will therefore approach the Secretariat of the Assembly of States Parties (ASP) to the Rome Statute, the political body of the ICC, to ensure that discussions take place during the ASP meeting to be held in The Hague from 18 to 26 November 2015, on the rules and procedures that must be developed to ensure clarity on the Article 97 consultation process and on the interpretation of Article 98, dealing with the complex issues around the immunities of serving Heads of State and Government of States which are not parties to the Rome Statute, like Sudan.

The Government remains committed to international criminal justice and to cooperate with the Court in the pursuit thereof as was envisaged in the Rome Statute. It is of the view that these discussions will serve to enhance the proper execution of international criminal justice.  

Statement issued by Clayson Monyela, Spokesperson for DIRCO, 5 October 2015