CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE ICC ARREST WARRANT FOR THE SUDANESE PRESIDENT… officials, including military and police, facilitated the Sudanese President al-Bashir to get to the airport and flee the country before the High Court had chance to issue a final decision, stating whether he should or should not be arrested. One day after issuing the interim order, on 15 June 2015, when President al-Bashir had already left the country, the full court constituting three judges and chaired by judge Dunstan Mlambo handed down an order stating that the conduct of the Respondents, to the extent that they have failed to take steps to arrest and/or detain the President al-Bashir, is inconsistent with the Constitution of the Republic of South Africa, and invalid . 16 The Respondents argued that on 4 June 2015 the SAR entered into a host agreement with the Commission of the African Union that provided for privileges and immunities for representatives of inter-governmental organisations based on the content of the General Convention on the Privileges and Immunities of the Organization of African Unity. The host agreement was published in the Government Gazette No 38860. The Applicant, the Southern Africa Litigation Centre, argued that the Rome Statute had been properly enacted into domestic law by means of the ICC Act. Furthermore, the Constitution and South African law are to be interpreted to comply with international law. The court explained that the ‘host agreement’ applied to representatives of inter- governmental organisations, therefore the only legal basis for claiming immunity might be customary international law. However, head of state immunities are waived by the Rome Statute and the ICC Act respectively. Moreover, immunity of President al-Bashir had been implicitly waived by the UN Security Council. In the opinion of the court, none of the Respondents’ arguments could ‘trump’ the Rome Statute. The President therefore does not enjoy immunity under customary international law and because SAR must respect its obligations under international law, President al-Bashir should have been arrested. The court stated that based on common sense there are clear indications that the order of Sunday 14 June 2015 was not complied with and it invited the National Prosecuting Authority to consider whether criminal proceedings were appropriate. In this reason the court stated the following: A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues . 17

16 The final judgment is available at: http://www.saflii.org/za/cases/ZAGPPHC/2015/402.pdf. 17 Para 37.2 of the judgment.

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