Yesterday, the Supreme Court of Appeal of South Africa ruled the government had shown unlawful conduct “in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir.” The Appeal Court has ruled that South Africa had therefore failed to comply with its obligations under the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Omar Al Bashir visited South Africa on 13 June 2015 to attend the 25th Assembly of the African Union.  The South African government took no steps to arrest Omar Al Bashir, claiming he benefited from immunity as a head of State. The South African Litigation Centre brought in response an urgent application on Sunday 14 June to the High Court of Pretoria, “seeking orders declaring the failure to take steps to arrest President Al Bashir to be in breach of the Constitution and to compel the Government to cause President Al Bashir to be arrested and surrendered to the ICC to stand trial pursuant to the two warrants.” While the Government opposed the application and sought to obtain a postponed until the next day, the High Court made an order prohibiting President Omar Al Bashir of Sudan from leaving the South African territory “until a final order is made in this application, and the respondents are directed to take all necessary steps to prevent him from doing so.” When an emergency order was eventually obtained the following day from the High Court ordering Bashir’s arrest, government lawyers admitted he had flown out of the country just a few hours earlier.

The decision by South Africa not to arrest Bashir sparked international condemnation, which was met with a threat from Pretoria to withdraw its membership with the ICC.

The ICC issued the first warrant of arrest for Omar Al Bashir on 4 March 2009 for charges of war crimes and crimes against humanity. Since then, the Court ruled on several Sate failures to cooperate in the arrest and surrender of Omar Al Bashir: the Republic of Malawi, the Republic of Chad, The Democratic Republic of the Congo and the Republic of Sudan and systematically referred its decision to the United Nations Security Council and to the Assembly of State Parties for them to take the necessary measures.

The full judgment is available here.