SUPREME COURT OF APPEAL RULES ON BASHIR CASE

15 March, 2016

Johannesburg- On 15 March 2016, the Supreme Court of Appeal (SCA) ruled that the South African government had a duty to arrest President Omar al Bashir in terms of domestic and international law and that failure to arrest him was unlawful.

President Omar al Bashir is wanted by the International Criminal Court (ICC) for the alleged perpetration of crimes against humanity, genocide and war crimes. As a signatory to the Rome Statute and having domesticated the Statute, South Africa is obligated to arrest President Omar al Bashir if he is found on South African territory.

President Bashir arrived in South Africa for the African Union Summit in June 2015 and after hearing of his arrival and the fact that he had not been immediately arrested, SALC, seeking to ensure that the government honours its domestic and international law commitments, approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant.

The High Court issued an interim order on 14 June 2015 preventing Bashir from leaving the country pending the finalisation of the matter which was set down for hearing on 15 June 2015.

The Court reconvened on 15 June 2015 and after hearing submissions from all the parties, it ordered that President Omar al Bashir be arrested and detained for subsequent transfer to The Hague. Despite the court’s ruling, the government allowed President Bashir to leave the country.

The High Court found that the state’s actions were unconstitutional and therefore invalid.

After being denied leave to appeal by the North Gauteng High Court, the state took the matter to the Supreme Court of Appeal alleging that President Bashir is protected by head of state immunity hence their alleged inability to arrest him for transfer to the ICC.

“We are thrilled with the SCA verdict as South Africa should not be treated as a safe haven for suspected perpetrators of egregious crimes” said Kaajal Ramjathan-Keogh, SALC’s executive director. “The South African government should seek to uphold the rule of law instead of shielding suspected war criminals and the SCA has made this clear today.”

Statement issued by Angela Mudukuti, International Criminal Justice Lawyer, SALC, 15 March 2016. For background on the case – see here.