The Minister of Justice and Constitutional Development and Others v The Southern Africa Litigation Centre

The ICC issued two arrest warrants for President Omar Al Bashir of Sudan - one in 2009 for war crimes and crimes against humanity, and another in 2010 for genocide. These warrants arose from a referral by the UN Security Council (Resolution 1593 of 2005) regarding the situation in Darfur. Sudan is not a party to the Rome Statute. South Africa, as a State Party to the Rome Statute and having enacted the Implementation of the Rome Statute Act 27 of 2002, received requests from the ICC to arrest and surrender President Al Bashir. When President Al Bashir arrived in South Africa on 13-15 June 2015 to attend the AU Summit, the Government took no steps to arrest him. The Southern Africa Litigation Centre brought an urgent application to the High Court to compel his arrest. The High Court granted an interim order prohibiting him from leaving, but President Al Bashir departed on 15 June 2015 before arrest could be effected. The High Court ruled that the Government's failure to arrest was unconstitutional and unlawful. The Government based its defence on a hosting agreement with the AU and a ministerial proclamation under s 5(3) of DIPA, claiming these conferred immunity.

• Whether the hosting agreement with the AU and ministerial proclamation under s 5(3) of DIPA conferred immunity on President Al Bashir
• Whether President Al Bashir enjoyed head of state immunity under customary international law and s 4(1)(a) of DIPA
• Whether the Implementation of the Rome Statute Act removes head of state immunity in the context of ICC arrest warrants and cooperation requests
• Whether Security Council Resolution 1593 (2005) or the Genocide Convention removed any immunity
• Whether the appeal was moot given President Al Bashir's departure
• The proper procedure for admission of amici curiae in the Supreme Court of Appeal
• The proper construction of ss 4(2) and 10(9) of the Implementation Act in relation to immunity

The application for leave to appeal was granted. The order of the High Court was varied to delete paragraph 2 (which required arrest under s 40(1)(k) of the CPA) and to clarify paragraph 1 to state that the failure to arrest was inconsistent with South Africa's obligations under the Rome Statute and s 10 of the Implementation Act, and was unlawful. The appeal was otherwise dismissed. The applicants (Government) were ordered to pay the costs of SALC and the Helen Suzman Foundation, including costs of two counsel. The applications by the other four proposed amici were dismissed with no order as to costs.

The binding legal principles are: (1) When South Africa enacted the Implementation of the Rome Statute Act to fulfill its obligations under the Rome Statute, it removed all forms of immunity, including head of state immunity, as a bar to the prosecution of international crimes in South Africa and to cooperation with the ICC by way of arrest and surrender of persons charged with such crimes before the ICC. (2) Section 4(2) of the Implementation Act excludes immunity ratione personae and ratione materiae not only as a defense to prosecution but also as a bar to the arrest necessary to bring a person to trial. (3) Section 10(9) of the Implementation Act expressly provides that the fact that a person is or was a head of state does not constitute a ground for refusing to issue an order for surrender to the ICC. (4) The Implementation Act is specific legislation dealing with South Africa's implementation of the Rome Statute and takes priority over the general provisions of DIPA in this specific area, applying the principle of generalia specialibus non derogant. (5) Sections 231(4), 232 and 233 of the Constitution require that legislation implementing international agreements be construed in a manner consistent with South Africa's international law obligations and the spirit, purport and objects of the Bill of Rights. (6) An interpretation that would prevent South Africa from fulfilling its obligations under the Rome Statute is to be avoided if possible.

Wallis JA made extensive obiter observations on customary international law regarding head of state immunity, concluding (obiter) that at the current stage of development of customary international law, there is no international crimes exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries and before foreign national courts. He examined the Arrest Warrant case (ICJ), the jurisprudence of the ICC, ECHR decisions, and academic commentary. The judge also made important observations on the proper procedure for applications for admission as amici curiae under Rule 16 of the SCA Rules, including: that admission as amicus does not automatically confer a right to make oral submissions (this is determined by the Court hearing the appeal); that an amicus must advance new contentions distinct from those of the parties; that adding additional references to authorities does not constitute advancing new contentions; and that amici are confined to the record on appeal and generally may not lead additional evidence. Wallis JA also commented critically on the Government's conduct in giving assurances that President Al Bashir was still in the country when he had in fact already departed, describing this as 'disgraceful conduct' and noting there were only two possibilities: either Government representatives misled counsel who misled the Court, or both knowingly misled the Court.

This is a landmark case in South African law on the intersection of international criminal law, head of state immunity, and domestic constitutional obligations. The judgment affirms South Africa's commitment to the Rome Statute and its obligations to cooperate with the ICC, even where this requires departing from customary international law principles of head of state immunity. The case establishes that the Implementation Act specifically removes immunity as a bar to arrest and surrender to the ICC, placing South Africa 'in the vanguard' of nations seeking to prevent impunity for international crimes. The judgment is significant for its detailed analysis of the Rome Statute, customary international law on immunity, and the constitutional requirements for interpreting legislation implementing international agreements. It also provides important guidance on the procedure and requirements for admission of amici curiae in the Supreme Court of Appeal. The case has important implications for future visits to South Africa by heads of state subject to ICC arrest warrants and for South Africa's diplomatic relations, particularly with the African Union.