Sudan's President Omar al-Bashir visited the country last year for the AU Summit. The ICC demanded that the South African government arrest him for crimes against humanity, genocide and war crimes. Picture: REUTERS/Adnan Abidi

Cape Town – The ANC on Tuesday said it would await the South African government’s response to the Supreme Court of Appeal’s dismissal of the state’s appeal against an earlier high court ruling that the decision by government not to arrest Sudanese President Omar al-Bashir of Sudan was unlawful.

In a statement, the ANC said: “The African National Congress has noted government has indicated that they will study the judgement before committing themselves to any further action. Accordingly, the ANC awaits government’s decision on this matter.”

The Supreme Court of Appeal on Tuesday turned down the South African government’s appeal against an earlier decision by the North Gauteng High Court that found it had breached the constitution when it failed to arrest Sudanese President Omar al-Bashir during his visit to the country.

The Minster of Justice and Constitutional Development and 11 other government institutions had argued that Al-Bashir had been protected by head of state immunity, according to customary international law, and that government could therefore not arrest Bashir when he attended the African Union Summit in South Africa in June last year.

The South African Litigation Centre (SALC) on the other hand, submitted that, as a signatory of the Roman Statute, the treaty that established the International Criminal Court, the South African government was bound by an arrest warrant issued by the ICC for the alleged perpetration of crimes against humanity, genocide and war crimes.

The appeal court found that by passing the Implementation of the Roman Statute Act in 2002, South Africa had effectively annulled all forms of immunity, including head of state immunity, and that it was bound by its obligations under the Roman Statute and therefore had to arrest Bashir.

Al-Bashir visited South Africa in June last year for the African Union Summit. He was at that point wanted by the ICC for crimes against humanity, genocide and war crimes.

Upon his arrival in the country, the South African Litigation Centre (SALC) approached the courts, seeking to enforce the ICC arrest warrant. It said it wanted to ensure that the government honoured its domestic and international law commitments.