The Case That Never Was: Al Bashir and the Great Unsaid

Presented by Dr Mia Swart

Research Director, Democracy and Governance Unit

Date: Friday 24th August, 2018

Time: 1:00PM – 2:00PM

Where: Melbourne Law School, Room 223, Level 2
185 Pelham St, Carlton VIC 3053

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The 2009 arrest warrant issued by the International Criminal Court for the arrest of Sudanese President Omar Al Bashir for charges of genocide, crimes against humanity and war crimes had important implications for South Africa. The fact that South Africa failed to arrest Al Bashir when he visited South Africa in 2015 triggered litigation against the South African government. It was expected that the case would be taken on appeal to the Constitutional Court and that that Court would have the final word on the question of whether Al Bashir was protected by head of state immunity. The litigation path of the Al Bashir case however ended at the Supreme Court of Appeal (SCA).

The fact that the case never reached the Constitutional Court has important implications. It means that the Constitutional Court never had the opportunity to make authoritative pronouncements on South Africa’s obligations under the Rome Statute and customary international law and meant that the Court could not resolve the question of whether sitting heads of state charged with international crimes are protected by immunity. This presentation will examine the flaws in the SCA case and speculatively consider the arguments the Constitutional Court could have made in this regard, particularly the question of whether it is desirable that an Act of Parliament should always trump customary international law.