Al-Bashir

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1 Introduction
In March the first warrant of arrest was issued for The President of the Republic of Sudan (“Sudan”), Omar Hassan Ahmed Al Bashir (“Al-Bashir”) and the second warrant of arrest in July in connection with allegations of war crimes, genocide and crimes against humanity committed in Darfur, Sudan between the periods of 2003 to 2005.
The International Criminal Court (“ICC”) informed all State Parties to the Rome Statute of the ICC (“Rome Statute”), to which South Africa is a party, to cooperate with the arrest warrant and to surrender Al-Bashir to the Court if he enters into their territorial jurisdiction. It is the first warrant of arrest issued to a head of state by the ICC. This illustrates the importance of accountability
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South Africa’s obligations in terms of the Rome Statute are in conflict with immunity laws for sitting Heads of State under customary international law.
Article 86 of the Rome Statute sets out what a state party to the statute is required to do in respect of arrest and surrender. This article outlines that state parties shall cooperate with the court in regard to investigations and prosecution of crimes by the ICC. However, South Africa argued that although there is an obligation to arrest Al-Bashir in terms of the Rome Statute, Al-Bashir enjoyed immunity ratione personae as a Head of State under international customary law. Article 98(1) also stipulates that the ICC will not issue requests for co-operation that would result in state parties violating their obligations to provide immunity under customary international law.
Therefore, according to the South African government there is an exception to their legal duty, this resulted in Al-Bashir being able to leave South Africa’s jurisdiction freely before the High Court of South Africa could hand down their
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In terms of customary international law, Heads of States are entitled to immunity ratione personae (absolute personal immunity) for their acts during their tenure in office. This customary rule is based on State sovereignty and sovereign equality. In the case Democratic Republic of Congo v Belgium (“DRC Case”), the International Criminal Court of Justice (“ICJ”) examined absolute personal immunities that Heads of State are entitled to under customary international law before domestic court. In this case it was analysed that incumbent officials are immune from foreign criminal jurisdiction when they travel abroad in their personal capacity or while holding office and act in their private capacity. This includes cases where these officials are accused of committing international crimes. This case therefore confirms the customary international law rule that the immunity of Head of States is absolute and that these officials cannot be prosecuted in foreign jurisdictions. However, it is necessary to establish whether this customary international rule on immunities of Head of States equally apples to international criminal

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