The implications of President Al-Bashir's visit to South Africa for international and domestic law

Abstract

This article assesses whether the South African North-Gauteng High Court correctly decided in June 2015 that the government violated international and domestic law when failing to arrest President Al Bashir of Sudan, while attending an AU summit in the country, and surrendering him to the ICC. The international law assessment turns on one’s interpretation of the interrelationship between Articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). The national law assessment turns on the status in the domestic legal order of the Rome Statute of the International Criminal Court Act, 2002, as well as a hoststate agreement which the government entered into with the AU Commission for the purposes of the organization of the AU summit. The starting point for this assessment is section 231 of the Constitution of the Republic of South Africa, 1996 which regulates the status of treaties in the domestic legal order. In addition, section 233 determines that domestic law has to be interpreted in accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.