South Africa had a duty under international law to respect the immunity of a serving head of a foreign state.
Under South African national law‚ it was a crime to violate this immunity.
This is one of the arguments presented to the Supreme Court of Appeal (SCA) by government last week as it seeks to appeal against the order of the full bench of the high court in Pretoria in June last year.
The court held that government’s decision not to detain Sudanese President Omar al-Bashir was inconsistent with the Constitution.
Al-Bashir came to the country for the African Union Summit in June‚ despite there being a warrant for his arrest issued by the International Criminal Court (ICC)‚ which seeks to try him for alleged war crimes. South Africa‚ as a signatory of the Rome Statute and having enacted local law adopting the statute‚ was bound to execute the warrant of arrest.
The Southern Africa Litigation Centre (SALC) sought the execution of the ICC warrant.
Despite a court order instructing the state to ensure it prevented Al-Bashir from leaving the country‚ the Sudanese president left South Africa after the summit.
The SCA will hear the matter on February 12 after government petitioned it following the high court’s refusal to grant government leave to appeal.
The question that the court needs to answer is whether a serving head of a foreign state enjoys immunity against arrest in South Africa despite a warrant for his arrest and a request for co-operation by the ICC.
In its heads of argument before the SCA dated January 14‚ government said immunity was a fundamental principle of international law and there had been no development of customary international law which abolished the personal immunity of a serving head of state.
“South Africa is not under a legal duty to arrest President Bashir for purposes of his prosecution by the ICC. South Africa is‚ instead‚ under a legal duty to respect President Bashir’s immunity while he continues to serve as Sudan’s President‚” government’s counsel led by advocate Jeremy Gauntlett SC said in its heads of argument.
Government said a judgment of the International Court of Justice in 2002 confirmed that immunity applied even in circumstances of crimes against humanity and that no exception existed to this rule of “full immunity from criminal jurisdiction and inviolability” of a serving head of state.
The SALC‚ which is opposing the application‚ has yet to file its heads of argument.