The International Criminal Court has issued two warrants of arrest for President Al Bashir. Prior to the Summit, acting on the possibility that President Al Bashir may attend it, the Court wrote to the South African Government, stating that it was under an obligation to arrest President Al Bashir and surrender him to the Court, should he attend the Summit, also inviting it to consult with the Court in terms of Article 97 of the Rome Statute. Article 97 provides that where a State Party to the Rome Statute that established the Court receives a request for cooperation to which it identifies problems which may impede or prevent the execution of the request, the requested State shall consult with the Court in order to resolve the matter.
Recognising that South Africa was faced with possible conflicting obligations with respect to the request for arrest and surrender from the Court and the immunities that international law accords to serving Heads of State and Government, as acknowledged by Article 98 of the Rome Statute, South Africa then approached the Court with a view to consult with it in terms of Article 97.
However, what was interpreted by South Africa to be a diplomatic and political process, was morphed into a judicial process based on an urgent application by the Prosecutor of the Court for an order on the South African obligations to the Court. South Africa was unfortunately not afforded the opportunity to present legal arguments on this application, and hence it is of the view that the principles of justice were not adhered to. In view of the above, South Africa is of the view that a serious infringement of South Africa’s rights as a State Party has taken place and that the Court has acted against the letter and spirit of the Rome Statute.