South Africa's Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan's President Omar Al Bashir
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Compilation 0 2017 Washington International Law Journal Association
SOUTH AFRICA'S DILEMMA: IMMUNITY LAWS,
INTERNATIONAL OBLIGATIONS, AND THE VISIT BY
SUDAN'S PRESIDENT OMAR AL BASHIR
NTOMBIZOZUKO DYANI-MHANGO*
Abstract: President A] Bashir has avoided the International Criminal
Court: (ICC) for seven years and has been able to travel to both states that are party
to the Rome Statute and states that are not without any consequences. The existence
of customary international law immunities makes it difficult for the ICC to be able to
discharge its duties without the cooperation of states parties. The silence of the
Security Council and its failure to clarify Security Council Resolution 1593 (2005) on
whether the resolution indeed removes Sudan's immunities in order for President Al
Bashir to be arrested and surrendered to the ICC equally makes the ICC's job
difficult. This article examines whether there is a justification for South Africa's
failure to abide by its obligations under the Rome Statute when it did not secure and
arrest President Al Bashir. This will be done against the backdrop of the ICC
decisions on the obligations of states parties to the Rome Statute to cooperate. The
article also analyzes the South African High Court and the Supreme Court of Appeal
judgments with regard to South Africa's domestic and international obligations.
I. INTRODUCTION AND BACKGROUND
In January 2015, the South African government agreed to host the
African Union Summit to be held in June of the same year.' This meant
the Heads of State and other senior government officials would attend
this Summit. Amongst those who would attend was Sudan's President
Omar Hassan Ahmad Al Bashir, who is wanted by the International
Criminal Court (ICC).2 He is alleged to have committed international
crimes which include five counts of crimes against humanity (murder,
extermination, forcible transfer, torture, and rape); two counts of war
crimes (intentionally directing attacks against a civilian population or
against individual civilians not taking part in the hostilities and pillaging);
LL.B, LL.M (Western Cape), SJD (Wisconsin-Madison), Associate Professor of International
Law, School of Law, University of the Witwatersrand, Johannesburg, South Africa. A draft version of
this article was presented at 1 st Law and Society in Africa Conference, Dynamism, Liminality, Reality?
Policy, Research and the Law in an Afropolitan Era, Cape Town, South Africa, co-hosted by the
Centre for Law and Society, University of Cape Town and Law and Society Association, Dec. 2016;
and at the Law and Society Annual Meeting, at the Delta: Belonging, Place and Visions oJ Law and
Social Change, New Orleans, Louisiana, USA, May 2016. 1 would like to thank the Wits Programme
in Law, Justice & Development for funding to attend the Annual Meeting in New Orleans, and the
organizers of the lst Law and Society in Africa to attend and present in Cape Town. I am grateful to
the editors of this journal for guidance and to Mtende Mhango for being a sounding board for my
ideas. All errors are mine.
1 Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development 2015
(5) SA 1 (GP) (S. Afr.).
2 The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09; The Prosecutor v. Omar
Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, Warrant of Arrest, (Mar. 4, 2009); The Prosecutor v.
Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest, (July 12, 2010). See
also The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-73, Judgment on Appeal,
(Feb. 3, 2010).](ViewImageLocal?handle=hein.journals/pacrimlp26&div=28&collection=&method=preview&ext=.png&size=3)
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South Africa's Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan's President Omar Al Bashir
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