The duty on South Africa to arrest and surrender President Al-Bashir under South African and international law : a perspective from 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 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.