The Duty on South Africa to Arrest and Surrender President Al-Bashir under South African and International Law

Abstract

In June 2015, South Africa hosted the African Union Summit. The Sudanese President, Al Bashir, under an ICC arrest warrant for, inter alia, genocide, attended the Summit. As a State Party to the Rome Statute, South Africa was under a duty to arrest AlBashir. Yet, South Africa is also under a duty, both under customary international law and the treaty law (the Host Country Agreement under which the Summit was held) not to arrest him. The South Africa High Court, applying South Africa"s Implementation of the Rome Statute Act and the Rome Statute, concluded that there was a duty to arrest Al Bashir, and also that there was no countervailing duty not to arrest him. This article, against the background of the decision of the High Court decision as well as the decision of Pre-Trial Chamber in the DRC decision, considers the various legal rules, both international and domestic, applying to the situation of Al Bashir. The article concludes that the judgment of the Court ignores the fundamental rules of international law.

The Reassertion of National Sovereignty

“…The example of the arrest warrant issued for Sudan's former president Al-Bashir highlights how this significantly undermines the effectiveness of the court, which depends on the support of its member-states to implement its decisions. 13 The historical example of the League of Nations shows how systematic non-compliance can become a serious problem for an io. In the early years of the organization's existence, the attacks by Poland on the Soviet Union and Lithuania in 1920 as well as the invasion of Greece into Bulgaria exposed open breaches with the League's core norm of peaceful resolution of inter-state conflicts.14 The same principle was violated by Japan's invasion of Manchuria in 1931/1932, the annexation of Ethiopia by Italy in 1938, the annexation of Austria by Nazi Germany in 1938 and the Soviet Union's invasion of Finland in 1939.…”

Understanding South Africa’s Changing Positions on International Criminal Justice: Why the country wanted to withdraw from the International Criminal Court (ICC) and why it may remain in the ICC for the time being?1

“…The ambivalence in the South African state's position became clear when then Sudanese President al-Bashir arrived at the AU Summit in Johannesburg on Saturday 13 June 2015 (Sarkin, 2016c). South Africa was supposedly duty bound, as a state party to the ICC, to cooperate with the ICC by arresting him and surrendering him to the ICC (Tladi, 2015). Thus, al-Bashir's entrance into the country was a test of what South Africa's true position on the ICC was.…”

Creating Space for Public Administration in International Organization Studies

“…In a democratic state, executive and judicial actors interact in the issuance of an arrest warrant, whereas, in contrast, the ICJ’s issuance of an arrest warrant need not imply that states will turn over a wanted person who enters their territory. Examples include the decision by Malawi (and others) to not turnover Mr. Bashir of Sudan when he visited their countries (BBC, 2011; see also Tladi, 2015). Each country knowingly admitted the Sudanese leader into their country for diplomatic business despite an international warrant for his arrest for alleged crimes against humanity.…”