According to the ICC indictment, President al-Bashir stands accused of five counts of crimes against humanity (including murder, extermination, forcible transfer, torture and rape), two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities and pillaging), and three counts of genocide (genocide by killing, causing serious bodily or mental harm and deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction).

The CFCR also notes with concern the government of South Africa’s reluctance to adhere to its constitutional and international obligations by failing to execute this arrest warrant.

In terms of section 231 of the Constitution, South Africa is, in principle, bound by an international agreement entered into by the National Executive once such agreement has been approved by resolution in both the National Assembly and the National Council of Provinces. However, such an agreement (save for self-executing provisions approved by Parliament) becomes law in South Africa only when it has been enacted into law by national legislation. In this case, South Africa is a State Party to the Rome Statute of the International Criminal Court (the Rome Statute), which it signed on 17 July 1998 and ratified on 27 November 2000. Moreover, South Africa incorporated this treaty into South African law by means of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act). In the preamble to the latter Act, South Africa declared its commitment to “bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute…or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the [ICC]“.

In terms of section 4(3) the ICC Act, South African courts will have jurisdiction when a person commits a crime in terms of the Act outside of the territory of South Africa, but if the alleged perpetrator is present in the country after the commission of the offence. In 2014, the Constitutional Court in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another held that South Africa is bound by its obligations in terms of both the Rome Statute and its own ICC Act. Accordingly, the Constitutional Court held that it was clear that a primary purpose of the ICC Act is to enable the prosecution – in South African courts or the ICC – of persons accused of having committed atrocities beyond the borders of South Africa.

In terms of section 2 of the Constitution, obligations imposed by the Constitution must be fulfilled – and any conduct inconsistent with the Constitution is invalid. Moreover, in terms of section 237, all constitutional obligations “must be performed diligently and without delay“. The President, as the Head of State and head of the national executive, must uphold, defend and respect the Constitution as the supreme law of South Africa and, together with other members of the Cabinet, act in accordance with the Constitution – and by implication – International Law.

However, rather extraordinarily, according to media reports, the government recently provided for blanket immunity to any leader, delegate and even people attached to delegations attending the African Union (AU) summit being held in South Africa by way of a proclamation in the Government Gazette in terms of the Diplomatic Immunities and Protections Act. Such a proclamation will, without doubt, fail to meet constitutional muster if its purpose was to protect President al-Bashir from prosecution or extradition.

South Africa is clearly obliged – both in terms of the Constitution and International Law – to give effect to its constitutional and international obligations to act against human rights violations, especially when it involve international crimes. Neither the Constitution nor the ICC Act provides for a discretion or exception to fulfil obligations enshrined in either for whatever reason. Quite simply, diplomatic relations do not trump constitutional obligations. As such, the South African government is obliged to arrest President Omar al-Bashir and to prosecute him in terms of the ICC Act, or to extradite him to the ICC for prosecution. If South Africa is serious about maintaining its rightful place in the community of nations with its concomitant obligations, it is best to adhere to the Constitutional Court’s advice: “We dare not be a safe haven for those who commit crimes against humanity“.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

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