The Implications of the Visit of Al Bashir to South Africa for International and Domestic Law

24 Pages Posted: 12 Aug 2015

See all articles by Erika De Wet

Erika De Wet

Faculty of Law, University of Pretoria

Date Written: August 12, 2015

Abstract

The article examines whether the North-Gauteng High Court in South Africa came to the right conclusion, both in terms of the applicable international and domestic law, in its decision of 15 June 2015 concerning Al Bashir. As will be illustrated below, the international law assessment turns on one’s interpretation of the inter-relationship between articles 27(2) and 98(1) of the ICC Statute, as well UNSC Resolution 1593 (2005). This analysis will inter alia make reference to the ICC Pre-Trial Chamber II decision of 14 April 2014 against the Democratic Republic of Congo (‘DRC’). The circumstances of that decision were very similar to the one against South Africa. It resulted from a visit by Al-Bashir to the DRC in 2014, in order to attend a meeting of the Common Market for Eastern and Southern Africa (‘COMESA’). The DRC, a state party to the ICC Statute, failed to comply with a request for arrest and surrender of Al Bashir to the ICC. It justified its position by relying on the AU decision not to surrender any sitting head of state to the ICC. The national law assessment turns on the status of the Implementation Act and the host-state agreement in the domestic legal order, as well as the requirement in section 233 of the Constitution of the Republic of South Africa, 1996 (‘Constitution’) that domestic law has to be interpreted in an accordance with international law as far as reasonably possible. The role of interpretation is of particular importance when determining the impact of UNSC 1593 (2005) and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.

Keywords: United Nations Security Council, International Criminal Court, immunity, jurisdiction

JEL Classification: UNSC; ICC; immunity; jurisdition; Al Bashir

Suggested Citation

De Wet, Erika, The Implications of the Visit of Al Bashir to South Africa for International and Domestic Law (August 12, 2015). Available at SSRN: https://ssrn.com/abstract=2642728 or http://dx.doi.org/10.2139/ssrn.2642728

Erika De Wet (Contact Author)

Faculty of Law, University of Pretoria ( email )

Physical Address Economic and Management Sciences
Pretoria, Gauteng 0002
South Africa

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