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 Al
Bashir. 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.
