Omar al-Bashir. Picture: EPA/KIM LUDBROOK
Omar al-Bashir. Picture: EPA/KIM LUDBROOK

THE government will argue before the Supreme Court of Appeal next month that, as a serving head of state, Sudanese President Omar al-Bashir could not be arrested on an order by a South African court.

The government was excoriated for allowing Mr Bashir — who is wanted by the International Criminal Court (ICC) for genocide, war crimes and crimes against humanity — to flee SA in June last year, despite an interim court order that he should not be allowed to leave.

Mr Bashir was in SA for an African Union summit. Before he could leave, the Southern African Litigation Centre (SALC) went urgently to court, saying he should not be allowed to leave until the court had decided whether he should be arrested in order to be brought before the International Criminal Court.

His dramatic escape, which unfolded as the court was hearing argument, earned the government a stern rebuke by the High Court in Pretoria for an apparent disregard for the rule of law. The High Court found that SA had a duty to arrest Mr Bashir and ordered it do so.

But the government has asked the Supreme Court of Appeal to set aside the High Court’s order, arguing that Mr Bashir is immune from arrest by a South African court for as long as he is a serving head of state. Following a request from the government, the appeal court has agreed to hear the application on an expedited basis.

In heads of argument filed in court on Friday, the government’s counsel, Jeremy Gauntlett SC, argued that personal immunity of a head of state — immunity in all respects during his term of office — is a fundamental principle of international customary law and is also provided for in SA’s Diplomatic Immunities and Privileges Act.

When it came to ordering the arrest of the Sudanese president, nothing in the Rome Statute, which established the ICC, or any South African law had altered that, argued Mr Gauntlett. The immunity operated even in the context of international crimes.

The South African law that domesticated the Rome Statute did not repudiate the "important principle of international law: the inviolability of sitting heads of state".

SA was under a duty to respect Mr Bashir’s immunity while he served as a head of state, he said.

He said the High Court’s order exposed SA to liability under international law. "Whether the High Court orders are correct is a question of national and international legal and diplomatic importance."

He said the hearing had been "compromised" and "precluded a fair hearing for government". Because the SALC had initiated proceedings on "a few hours’ notice", he said, "a number of important judgments and commentary were missed by the High Court. There was a good chance the appeal court would come to a different conclusion," he said.

The case is scheduled to be heard on February 12.