Abstract:
This article assesses whether the South African North-Gauteng High Court correctly decided
in June 2015 that the government violated international and domestic law when failing to
arrest President Al Bashir of Sudan, while attending an AU summit in the country, and
surrendering him to the ICC. The international law assessment turns on one’s interpretation
of the interrelationship between Articles 27(2) and 98(1) of the ICC Statute, as well UNSC
Resolution 1593 (2005). The national law assessment turns on the status in the domestic legal
order of the Rome Statute of the International Criminal Court Act, 2002, as well as a hoststate
agreement which the government entered into with the AU Commission for the purposes
of the organization of the AU summit. The starting point for this assessment is section 231 of
the Constitution of the Republic of South Africa, 1996 which regulates the status of treaties in
the domestic legal order. In addition, section 233 determines that domestic law has to be
interpreted in accordance with international law as far as reasonably possible. The role of
interpretation is of particular importance when determining the impact of UNSC 1593 (2005)
and the Pre-Trial Chamber II decision against South Africa within the domestic legal order.
