Resolving the conflict between South Africa’s international and domestic legal obligations concerning the arrest of heads of state : lessons from the Al Bashir visit to South Africa

Abstract

This dissertation involved a discussion and analysis of the international and domestic legal framework, and case law governing the immunity, arrest and surrender of heads of State wherein international crimes are addressed. This is in light of the visit by Omar Al Bashir, as then President of Sudan (Al Bashir), to South Africa when he attended an AU summit in the country. Before engaging discussions and analysis on the international and domestic legal framework, the dissertation starts by providing a background on immunity, arrest and surrender within the context of the Al Bashir matter. This was undertaken because the dissertation makes reference to the Al Bashir matter throughout, in order to demonstrate the conflicting obligations that arise for South Africa under the current legal framework, that is, the Rome Statute, Implementation Act and the DIPA. On this note, the dissertation discusses the international position on immunity, arrest and surrender of heads of State, emphasizing the conflicting obligations that arise from the Rome Statute, being the international legal instument governing it. This part of the discussion involves the clash between customary international law immunity and Rome Statute provisions, as well as international case law thereon. As a result, the basis to measure the extent of South Africa’s compliance with the international law position on immunity, arrest and surrender, was provided. The dissertation then proceeds with a discussion on whether South Africa’s law complies with the international position on immunity, arrest and surrender of head of State to the ICC for trial. The discussion highlights the domestic laws of South Africa and case law on South Africa’s failure to cooperate with ICC requests for the arrest and surrender of Al Bashir when he arrived in South Africa with two pending arrest warrants. Following this, the dissertation proceeds to discuss the effect of ICC cases on the international law position on immunity, arrest and surrender of heads of State such as Al Bashir. Finally, the dissertation provides an overall analysis to establish whether South Africa’s law complies with the international legal position and provides a recommendation based on the findings of the dissertation. Generally, South Africa has successfully incorporated the Rome Statute into its domestic laws under the Implementation Act. However, the pressing issue is the conflicting obligations that arise under the Rome Statute given that it recognises customary international law immunity, and in other provisions it denies immunity. This results in conflicting obligations for South Africa, as such, South Africa failed to arrest and surrender Al Bashir on the basis of customary international law immunity, recognised in the Rome Statute. Moreover, South Africa has incorporated as part of their law, both the Implementation Act which precludes immunity, as well as the DIPA, which grants immunity to heads of State. As such, this dissertation recommends an amendment to the Implementation Act in order to ensure South Africa’s compliance with provisions of the Rome Statute, to cooperate with ICC requests which is supported by international and domestic case law.