South Africa/Sudan: Case challenging the State’s failure to implement the ICC arrest warrant for Sudanese President Al Bashir

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Salc : Staff Writer

SALC sought the implementation of an arrest warrant for Sudan’s President Omar al Bashir who arrived in South Africa for the African Union (AU) summit that took place in Johannesburg 7-15 June 2015.

The International Criminal Court (ICC) issued a warrant for his arrest in 2009 and 2010 on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur after a 2003 insurgency. As a signatory to the Rome Statute and having domesticated the Statute, South Africa is obligated to arrest President Omar al Bashir if he is found on South African territory.

After hearing of his arrival in South Africa and the fact that he was not immediately arrested, SALC approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant. The Court issued an interim order on 14 June 2015 preventing Omar al Bashir from leaving the country pending the finalisation of the matter which was set down for hearing on 15 June 2015.

The Court reconvened on 15 June 2015 and after hearing submissions from all the parties, it ordered that President Omar al Bashir be arrested and detained for subsequent transfer to the Hague.

After handing down this order the Court was informed by the state respondents that President Omar al Bashir had already left the Republic in direct contravention of the interim court order issued on 14 June 2015. The Court then requested that the state submit an affidavit explaining how President Bashir was allowed to leave the country.

The state submitted its explanatory affidavit and subsequently filed for leave to appeal the High Court judgment. The application for leave to appeal was heard on Friday 14 August 2015.

On 16 September 2015, the North Gauteng High Court denied the state leave to appeal indicating that the issue was moot, and that there were no prospects of success on appeal. The state petitioned Supreme Court of Appeal and the matter was heard on 12 February 2016.

On 15 March 2016 the Supreme Court of Appeal ruled that the government’s failure to arrest President Bashir was unlawful and dismissed their application for leave to appeal with costs.

On 8 April 2016 the government applied for leave to appeal to the Constitutional Court. The matter was scheduled to be heard on 22 November 2016. However on 19 October 2016, in a media briefing, the government announced its withdrawal from the case and formally communicated this on 25 October. The Constitutional Court noted and accepted withdrawal on 18 November 2016.

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