Supreme Court of South Africa finds Government's failure to arrest Bashir was unlawful

The Supreme Court of Appeal in South Africa issued a judgment earlier today on the failure of the Government to arrest Sudanese President Omar Al-Bashir last June. This judgment confirms an earlier decision, which found that the Government should have arrested Al-Bashir and transferred him to The Hague. 

The decision has some interesting things to say about immunity of sitting heads of state under international law. Following the International Court of Justice's position on this point, it declines to hold that there is an 'international crimes exception' to the immunity enjoyed by heads of state before foreign national courts. Instead, it finds that the domestic legislation - South Africa's Implementation Act - waives the immunity of heads of state or government. 

The wording of the Implementation Act does, however, contain a potentially important difference to Article 27 of the ICC Statute on irrelevance of official capacity. Section 4(2) of the the Act states that:

(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person—

(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or

(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither—

(i)  a defence to a crime; nor

(ii)  a ground for any possible reduction of sentence once a person has been

convicted of a crime.

This is essentially a reflection of Article 27(1) of the ICC Statute, except that the term 'defence' in the South African act is used instead of the ICC Statute's, arguably broader, term of 'exempt[ing] a person from criminal responsibility'. However, as Dapo Akande has previously noted, 'To say that official capacity does not exclude criminal responsibility is not necessarily to say that the person may not be immune from the jurisdiction of particular tribunals'. Crucially for me, there is no equivalent provision to Article 27(2) of the Statute in the domestic Act - this is the provision which states that: 

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

In the absence of an equivalent provision in the South African Act, I am not convinced of the Court's conclusion that section 4(2) 'is a clear indication that South Africa does not support immunities when people are charged with international crimes.' Certainly, it does not support the invocation of official capacity as a defence to international crimes, but there is nothing in the Act that stops the accused from raising immunity as a bar to jurisdiction, which is an entirely different matter. The question of whether heads of state of non-State Parties are entitled to immunity, especially in light of Article 98(1) of the ICC Statute, remains far from fully resolved.