South Africa is constitutionally bound by the provisions of its Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act), which incorporated the country’s International Law obligations in terms of the Rome Statute of the International Criminal Court (the Rome Statute). In this regard, the Court reiterated that “it is clear that the provisions of the [ICC Act] prevail over the rules of customary international law imported by the Immunities Act, and are subservient to it…It [the ICC Act] expressly excludes Head of State immunity from jurisdiction and from prosecution”. Moreover, referring to precedent set by the Constitution Court, the Court correctly asserted that the South African government is bound by the provision of the legislation implementing international obligations – in this case the ICC Act – and must give effect to its provisions.

The State may now petition the Supreme Court of Appeal and the Constitutional Court to hear an appeal which, for the same reasons as given by the High Court, is unlikely to be successful. Even if the State successfully petitions either Court, it is difficult to see how either of these higher Courts will come to a different decision. Perhaps it is time for the government to concede that it acted unlawfully.

Moreover, the International Criminal Court (the ICC) seems to agree with this notion. In a recent order issued by the ICC, it stated that all of the issues raised by South Africa – the same facts and reasons argued before the High Court – had already been decided upon by the ICC and “that there was no ambiguity in the law”. The South African government had a legal duty to comply with the ICC’s request for cooperation.

Incidentally, in relation to the order issued by the ICC, it is worth noting that the ICC not only took note of the judgment and orders of the North Gauteng High Court, but also the South African government’s failure to comply with the High Court’s order. Accordingly, the ICC held that it believes the government’s failure to comply with a request to cooperate with the ICC warranted the opening of proceedings pursuant to article 87(7) of the Rome Statute. The latter article provides that where a State Party, contrary to the provisions of the Rome Statute, fails to comply with a request by the ICC to cooperate with the Court, the ICC may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the United Nations (UN) Security Council referred the matter to the ICC, to the UN Security Council. Consequently, the ICC issued an order requesting a submission from the South African government by 5 October 2015 before the Court makes a finding on whether to refer the matter to the UN Security Council (since the Sudan case was referred to the ICC by the UN Security Council). As such, the South African government may soon have to explain its actions to the UN Security Council.

Ironically, the North Gauteng High Court may have come to one wrong conclusion. Its contention that there was no longer any live controversy between the parties (President Al-Bashir having been allowed to leave South Africa in violation of the High Court’s order) may have been somewhat optimistic. South Africa will be hosting the second summit of the Forum on China-Africa Cooperation in December – and Sudan has been invited.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

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