Escape from Johannesburg?

Abstract

The June 2015 visit of Sudanese President Al-Bashir to South Africa captured not only the legal community’s attention, but the attention of the entire world. For a brief moment, it appeared that he might have to face the serious accusations levelled against him by the International Criminal Court (‘ICC’) in The Hague. However, that was not (yet) to be. This paper provides a step-by-step account of the relevant events relating to President Al-Bashir’s visit as well the explanation offered by the South African government of how it was that President Al-Bashir was able to leave the country in violation of an interim court order. In addition, it considers the written judgment of the North Gauteng High Court of South Africa – holding that President Al-Bashir was not protected from arrest by virtue of Head of State immunity. On that matter, whilst the judgment was convincing in its rejection of the weak arguments presented by the State, its consideration of Head of State immunity – a matter not directly argued by the State – suffers from a lack of clarity. Lastly, this paper examines the position articulated by ICC Pre-Trial Chamber II on the issue of President Al-Bashir’s Head of State immunity: that it was implicitly removed via the text of UN Security Council Resolution 1593 (2005) which referred the Darfur situation to the ICC. It does so in light of the European Court of Human Right’s pronouncement in Al-Jedda: that if the UN Security Council, pursuant to its resolutions, intended for States to act in a manner that would otherwise be inconsistent with their international obligations (in that case, international human rights law) then it would have used clear and explicit language to do so.