The Minister of Justice and Constitutional Development v The Southern African Litigation Centre

The International Criminal Court (ICC) issued arrest warrants in 2009 and 2010 for the President of Sudan, Omar Hassan Ahmad Al Bashir, for war crimes, crimes against humanity and genocide. South Africa, a state party to the Rome Statute, received requests from the ICC to arrest and surrender him. In June 2015, President Al Bashir travelled to South Africa to attend the African Union Summit in Johannesburg. Despite a High Court interim order preventing his departure, the South African government failed to arrest or detain him, and he left the country. The Southern African Litigation Centre (SALC) brought urgent proceedings in the Gauteng Division of the High Court, seeking declaratory and mandatory relief. The High Court held that the government’s failure to arrest Al Bashir was unlawful and inconsistent with South Africa’s obligations. The government sought to appeal, arguing that Al Bashir enjoyed immunity as a head of state under customary international law, the Diplomatic Immunities and Privileges Act 37 of 2001, and a hosting agreement with the African Union.

Leave to appeal was granted, but the appeal was dismissed. The High Court order was varied to declare that the government’s failure to arrest and detain President Al Bashir for surrender to the ICC was inconsistent with South Africa’s obligations under the Rome Statute and the Implementation Act and was unlawful. The applicants were ordered to pay the respondent’s costs, including the costs of the admitted amicus curiae.

This case is a landmark decision affirming South Africa’s obligations under international criminal law and the supremacy of the Rome Statute Implementation Act over claims of head-of-state immunity. It clarified that South Africa cannot rely on customary international law, domestic immunity legislation, or diplomatic arrangements to avoid its duty to cooperate with the ICC. The judgment has major implications for South Africa’s foreign relations, its role in international justice, and the domestic enforcement of international law.