Sudanese President Omar al-Bashir addresses top officials from his ruling National Congress Party (NCP) during a meeting on August 21, 2015 in the capital Khartoum, as he presses efforts to start talks to resolve Sudan's ailing economy and the conflicts on its peripheries. AFP PHOTO/ ASHRAF SHAZLY / AFP / ASHRAF SHAZLY

Bloemfontein – Did the government break the law when it allowed Sudanese president Omar al-Bashir to leave the country last year, despite a warrant for his arrest having been issued by the International Criminal Court (ICC)?

Or did it merely, correctly, apply the principals of head of state immunity? That was at issue before the Supreme Court of Appeal on Friday, as the state applied for leave to appeal against an earlier decision by the North Gauteng High Court that its failure to arrest al-Bashir was unconstitutional.

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This was a special sitting of the appeal court in Bloemfontein, whose new term actually only starts on Monday.

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.

South Africa is a signatory of the Rome Statute – the treaty that established the ICC and governs its functions, jurisdiction and structure. In excess of 120 states are party to the statute.

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In their submissions before court, twelve government institutions, including the ministers of justice, police and home affairs and the National Director of Public Prosecutions argue that immunity was a fundamental principal of international law.

They claim that there had been no development of customary international law which abolished the personal immunity of a serving head of state, and that this immunity continues to operate even in the context of international crimes. Accordingly, South Africa is under a legal duty to respect the personal immunity of a serving head of a foreign state.

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The state’s legal team claims that no court in the world has to date, as far as is known, ordered the arrest of a sitting head of state. They point out that the North Gauteng Court’s judgement had far-reaching practical implications for al-Bashir as he was now prevented from traveling to or through South Africa, whether on private or official business. It also had profound legal consequences, in that the order exposes South Africa to liability under international law.

Quoting international case law and academic commentators, the state’s legal team submits that South Africa was under no legal duty to arrest President al-Bashir for purposes of his prosecution by the ICC, and that the country was in fact under a legal duty to respect President al-Bashir’s immunity while he continues to serve as Sudan’s president.

They also propose that the United Nations Security Council elected not to impose any such obligation on member states like South Africa, as it only urged them to co-operate with the ICC, and did not go as far as ordering an arrest.

Citing the examples of the indictments of former presidents Charles Taylor of Liberia and Slobodan Milosevic of Yugoslavia before international courts, they further submit that under customary international law, heads of state enjoyed no immunity before international courts, but that the position was different before national courts where they can claim immunity.

They contend that South Africa’s Diplomatic Immunities and Privileges Act gives effect to what has “long been considered a legitimate and necessary feature of international law”. And that the law of immunities “serve the important purpose of stabilising the world order and conducing to peace and security”.

The state concludes its written submission before the court by quoting legal writers’ contention that al-Bashir can only be lawfully arrested when his head of state immunity is removed.

This can only be realised in three ways: If the Sudanese government waives his immunity, if a new Security Council resolution imposes definite obligations on UN member states to act upon the arrest warrant, or if al-Bashir is removed from office.

At the start of Friday’s proceedings before a full bench of appeal judges, Judge Carol Lewis wanted to know from Advocate Jeremy Gauntlett, appearing for the state, whether the high court had been correct in finding that the issue was moot, prompting its refusal to grant leave to appeal. This was because al-Bashir had already “flown the nest”, returning to Sudan.

Gauntlett proposed that the order against al-Bashir “stands without time limit”, and would apply to him should he decide to come to South Africa in the near future. He suggested that the judgement of mootness by the high court had not been “responsibly taken” and did not apply.

The appeal judges interrogated Gauntlett on his submission that the immunity granted to heads of state as contained in the Immunities Act, continues to stand despite the subsequent provisions of the Rome Statute that perpetrators of international crimes should be surrendered to the ICC when there’s a warrant for their arrest, regardless of their official capacity.

Gauntlett’s reply was that the Rome Statute did not remove immunities that had already been established, as far clearer language was needed in order to do that. Immunity had to be expressly waived, before the provisions of the Rome Statute applied to a head of state.

In their submissions, the South African Litigation Centre state that al-Bashir had allegedly been the mastermind behind widespread attacks by the Sudanese government on the people of Darfur in Sudan from 2003 to 2008. The attacks are alleged to have included large-scale extermination, murder, rape, torture and forcible displacement of civilians.

The United Nations’ Security Council subsequently referred the situation in Darfur to the prosecutor of the ICC, who issued an arrest warrant. It urged all states to “co-operate fully”.

The ICC later ruled that “the immunities granted to Omar al-Bashir under international law and attached to his position as head of state have been implicidly waived by the Security Council of the United Nations… and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.”

SALC says that this ruling, together with provisions in the Roman Statute, stating that it was “equally applicable to all persons without any distinction based on official capacity” placed South Africa under an obligation to surrender al-Bashir. It also submits that this duty to surrender is not confined to prosecutions in the ICC, but applies to all prosecutions – including those in the national courts of the states that are parties to the Roman Statute.

SALC points out that local legislation in the form of the ICC Act, which embodies the provisions in the Roman Statute, negated any head of state immunity.

They also quote legal writers who state that “the principle of non-immunity for international crimes applies equally to incumbent heads of state and former heads of state”.

They list several examples of current and former heads of states that had been handed over to international tribunals, like Slobodan Milosevic, the former president of Yugoslavia, and Charles Taylor of Liberia.

“State practices is in flux”, SALC goes on to say. “There is a developing norm to co-operate with international tribunals and to give affect to their arrest warrants.”

Gauntlett acknowledged this, but submitted that international customary law on this issue was only “poised to changed” and is not there yet. Immunity for heads of state therefore still applied.

SALC in turn pointed out that: “The ICC’s decisions are binding under the Rome Statute, to which South Africa is a signatory, our domestic law in the form of the ICC Act as well as our domestic common law. It is furthermore a well-established principle of international law that a state cannot rely on the provisions of its domestic law in order to justify the breach of an international obligation.”

According to Advocate Wim Trengove, appearing for SALC, the key piece of legislation in this regard was contained in South Africa’s ICC Act, which effectively stripped current and former heads of state of immunity inferred by the Immunities Act.

“So this shows that South Africa is committed to bringing perpetrators of international atrocities to book, no matter what their status?” asked Justice Lewis.

“Correct,” Trengove replied.

Trengove went on to say that the Immunities Act in any event provided immunity to heads of state against civil or criminal prosecution in that country, but that the function of the court in this instance would have been purely executive.

“South Africa would only be the policeman arresting and releasing al-Bashir to an international court for a judicial function”.

The court also heard submissions by the Helen Suzman Foundation, the Peace and Justice Initiative, the Centre for Human Rights, the African Centre of Justice and Peace Studies and the International Refugee Right Initiative as amicii curiae (friends of the court) in support of SALC.

Judgement has been reserved.