In June 2015, South Africa hosted the Summit Meeting of the African Union. The Sudanese President, Omar Hassan Al-Bashir, under an arrest warrant of the International Criminal Court (ICC) for, inter alia, genocide, attended this summit. As a State Party to the ICC Statute, South Africa was under a duty to arrest Al-Bashir. Yet, South Africa is also under a duty, both under customary international law and treaty law, namely, the Host State Agreement under which the summit was held, not to arrest Al-Bashir. The South African High Court, applying South Africa’s  Implementation of the Rome Statute Act as well as the ICC Statute, concluded that there was a duty to arrest Al-Bashir, and additionally, that there was no countervailing duty not to arrest him. This article, against the background of the decision of the High Court as well as the decision of the Pre-Trial Chamber of the ICC with respect to the Democratic Republic of the Congo, considers the various legal rules, both international and domestic, applying to the case of Al-Bashir. The article concludes that the judgment of the High Court ignores fundamental rules of international law.

Read full article J Int Criminal Justice-2015-Tladi-1027-47