'Arresting al-Bashir would have been criminal'

Government says arresting Omar al-Bashir would itself have constituted a criminal offence.

Sudanese President Omar al-Bashir. Picture: AFP.

PRETORIA - Government has argued that arresting Sudanese President Omar al-Bashir would itself have constituted a criminal offence.

The details are contained in its application for leave to appeal, filed at the High Court in Pretoria on Monday.

The Sudanese president visited South Africa last month to attend the African Union summit in Sandton.

It emerged after the court ordered his arrest on an International Criminal Court warrant that he had already fled the country.

The state attorney has argued that the full bench of judges should have found that the Diplomatic Immunities and Privileges Act confers immunity on a head of state and that no discretion to ignore this exists.

The government relied on the legislation, as well as a government notice, to confer immunity on al-Bashir but a court found that these did not trump the obligations as set out in the Rome Statute, which has been domesticated.

But government says there are no provisions in the statute which impose a legal duty to act contrary to sections of this legislation.

Government says the court erred and misdirected itself by ordering the arrest of al-Bashir.


Government has argued that the Supreme Court of Appeal (SCA) must consider the judgment related to al-Bashir's arrest because an authoritative interpretation of the law is of fundamental importance for South Africa's international relations.

Government says the SCA should hear this matter because South Africa's legal position in respect of executing international criminal court arrest warrants is a new issue, which has not yet been decided on.

It argues that the appeal court, unlike the high court, will be afforded an opportunity to deliberate on the matter without severe time constraints - as was the case last month.

Government says not only South Africa, but the AU, United Nations and ICC will benefit from an authoritative interpretation of the application.

It believes provisions in the immunities act - used to confer special status on president al-Bashir suspends any duty to arrest him.