'SA was legally obligated to arrest al Bashir'

Advocate David Unterhalter says the State is duty-bound to ensure crimes such as genocide don't go unpunished.

FILE: Sudanese President Omar al-Bashir. Picture: AFP.

BLOEMFONTEIN - The question of South Africa's obligation to the International Criminal Court (ICC) and its failure to act against Sundanese president Omar al Bashir is now in the hands of the Supreme Court of Appeal.

Judgment has been reserved after Advocates Jeremy Gauntlett and Wim Trengove came head-to-head to argue issues of national and constitutional importance.

The country's top legal minds battled it out in Bloemfontein today.

In June last year, the Southern Africa Litigation Centre (SALC) successfully launched an application to compel government to arrest al Bashir when he attended the African Union Summit in Johannesburg. However, the order was ignored.

The Helen Suzman Foundation has argued that the Constitution imposed a legal duty on the State to arrest the Sudanese leader and hand him over to the International Criminal Court (ICC) for prosecution.

Al Bashir is wanted by the ICC for genocide and crimes against humanity.

Advocate David Unterhalter said when applying the over-arching principles of the Constitution to legislation which gives immunity to heads of state, it is clear that South Africa was legally obligated to arrest the Sudanese president.

Unterhalter argued that such immunity is inconsistent with the Constitution, and the State is duty-bound to ensure crimes such as genocide do not go unpunished.

The SALC told the court that the provisions in the Rome Statute override the domestic law the state relied on not to act on the ICC's arrest warrant.

It further argued that any immunity which al Bashir might claim he has was waived by a United Nation Security Council resolution.

Earlier, Advocate Max du Plessis said changes in international law, such as the creation and adoption of the ICC, permitted the prosecution of sitting heads of state.

He said it was incorrect for the State to rely on international law to defend its failure to arrest al Bashir.

Advocate Trengove told the court that the adoption of the Rome Statute placed a legal obligation to act on an ICC warrant of arrest.

However, Advocate Gauntlett argued that the Immunity Act, which the state relied on, secured al Bashir's immunity.

He added that there had been no development in law that overrode this provision.