State sticks to its guns on al-Bashir case
It argues that immunity to sitting heads of state overrides its obligations to the Rome Statute.
BLOEMFONTEIN - The State has argued that legislation giving immunity to sitting heads of state overrides its obligations to the Rome Statute.
The argument was heard in the appeal against the High Court's finding that the government's failure to arrest Sudanese President Omar al-Bashir was unconstitutional.
In June last year, the Southern African Litigation Centre (SALC) successfully launched an application to compel government to arrest al-Bashir when he attended the African Union (AU) summit in Johannesburg. However, the order was ignored.
The president is wanted by the International Criminal Court (ICC) on crimes including genocide and crimes against humanity.
Advocate Jeremy Gauntlett said provisions in the Immunities Act overrode the legislation which implemented the ICC in domestic law.
Judge Carole Lewis questioned, however, how international law had developed, particularly around crimes such as genocide.
Gauntlett argued that there had been no development that abolished immunity for a head of state.
Advocate Wim Trengove argued that the legislation was clear and that heads of state were not granted immunity from prosecution.
Trengove argued that sections of the Immunities Act simply could not be invoked to defeat South Africa's international legal obligations.