CYIL Vol. 7, 2016

JAN LHOTSKÝ CYIL 7 ȍ2016Ȏ Following this ruling, the government appealed to the Supreme Court of Appeal of South Africa. Within this proceeding, the government argued that President al-Bashir enjoyed Head of State immunity that precluded his arrest pursuant to the ICC arrest warrants. The other party countered on two grounds. First, that there was an exception for international crimes within the customary immunities. Second, the Parliament of South Africa enacted legislation in order to give effect to the Rome Statute domestically and the ICC Act specifically provides that there are no immunities for anyone, including Heads of State, in respect of international crimes. The Supreme Court of Appeal did not agree with the first argument and stated that in the present state of development customary international law does not yet recognise an international crimes exception. However, it concluded that the immunities in question have been removed by the decision of the Parliament by means of the ICC Act. 18 Therefore, on 15 March 2016 the Supreme Court of Appeal of South Africa dismissed the government’s appeal. 10. Concluding remarks Based on the situation explained, this paper deals more generally with the questions of the immunities of a Head of State with regard to a UN Security Council referral and applicability of the waiver of immunities according to the Rome Statute. Its conclusions are the following: • The relationship between customary immunities and Security Council referral to the ICC with regard to a Head of State is a grey legal area that enables different interpretations. • The traditional immunity-based approach supported by the African Union holds the view that customary immunities of a Head of State prevail over the arrest warrant of the ICC. • However, the values-based approach presents at least one convincing argument, according to which it is not legally possible to invoke the immunities of a Head of State within this case. That is, by means of referring the situation in Darfur to the ICC, the immunities were implicitly waived by the Security Council resolution. Furthermore, it may also be argued that immunities under customary international law do not apply before international criminal tribunals. In addition, according to a progressive argument, customary immunities do not cover international crimes such as genocide, crimes against humanity and war crimes, because their prohibition has a jus cogens character. • Therefore, based on this interpretation, all States Parties to the Rome Statute have a legal obligation to arrest and surrender the Sudanese President to the ICC if he enters their territory.

18 Para 103 of the judgment.

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