SCA to start decisive case on SA’s ICC obligations

The SCA will hear arguments on whether or not to allow the government leave to appeal against the High Court in Pretoria’s ruling last year that the government broke the law and violated the Constitution by not arresting Sudanese President Omar al-Bashir when he visited South Africa.

The ICC has issued a warrant of arrest for Al-Bashir for allegedly committing genocide, war crimes, and crimes against humanity in Sudan’s rebellious western region of Darfur. As a member of the ICC, South Africa is obliged to arrest him and hand him over to the ICC if he visits this country.

When he came to Johannesburg to attend the African Union (AU) summit last June, the high court issued an urgent order to the government to detain him in the country until the court had ruled whether or not he should be arrested.

But the government allowed him to leave the country. And so on June 24 the high court ruled that the government had broken the law and violated the Constitution by failing to arrest Al-Bashir and disobeying the high court’s order to detain him.

The government had not only violated its obligations to the ICC, it had also broken South African law, the Implementation of the Rome Statute of the International Criminal Court Act, which put the ICC’s Rome Statute into domestic statutes.

On September 15 the high court denied the government leave to appeal against its June 24 judgment. The government argued that it had a higher obligation not to arrest Al-Bashir which was also domesticated in South African law, the Diplomatic Immunities and Privileges Act, which obliged it to grant immunity against arrest to foreign heads of state and government.

But the high court judges said the ICC implementation act was clearly a higher obligation because it had been enacted after the immunities act and had expressly overridden the diplomatic immunity of heads of state and government.

So the government petitioned the SCA directly for leave to appeal against the high court judgment. On November 24 the SCA agreed to hear oral arguments on February 13 on whether or not it should grant the government leave to appeal. If it decided to do so, the appeal would proceed immediately.

The government’s application for leave to appeal is being opposed by the Southern African Litigation Centre, the Johannesburg-based rule of law NGO which originally asked the high court to order the detention and then arrest of Al-Bashir.

Counsel for the government, Jeremy Gauntlett SC, argued before the high court last September that the matter should be referred to the SCA because it was of national and international legal significance. He said it involved the international criminal accountability of a sitting head of state, his susceptibility to arrest in a foreign state, and South Africa’s legal duties under national and international law.

Gauntlett argued that the high court had handed down a final order imposing a duty on the government to arrest a sitting head of state and was therefore not restricted to Al-Bashir.

He said there was a possibility that Al-Bashir could again enter South Africa and the order could also affect other heads of state visiting the country who found themselves in a similar position.

This means that the February 13 SCA hearing could lead to a precedent-setting ruling by that court on South Africa’s future obligations to the ICC.

The case also has a bearing on how the government responds to a request from the ICC to submit an explanation of why it failed to comply with a request from the ICC to arrest Al-Bashir last June.

South Africa was originally supposed to provide that explanation by October last year but the ICC’s Pre-Trial Chamber II, which is handling the Al-Bashir case, gave it an extension until the domestic legal processes around the incident had been concluded.

ICC prosecutor Fatou Bensouda opposes this indefinite extension because she says the South Africa legal process could drag on for a very long time, possibly going from the SCA to the Constitutional Court.

On October 26 she asked the Pre-Trial Chamber to allow her to argue that the chamber should give South Africa a definite deadline – of around December 31, 2015 – to submit its response.

But the Pre-Trial Chamber seems to be ignoring her request. 

ANA

File photo: Gallo Images