The High Court in Pretoria on Sunday granted an interim order preventing Sudan’s President Omar al-Bashir from leaving South Africa, pending an urgent application for his arrest. The application would be heard at 3pm.

The Southern African Litigation Centre (SALC) is asking Judge Hans Fabricius to enforce two arrest warrants against Al-Bashir, who arrived in Johannesburg for an AU summit on Saturday night.

Fabricius’s interim order reads: “… thus compelling Respondents to prevent President Omar Al-Bashir from leaving the country until an order is made in this court.”

SALC lawyer Caroline James said on the sidelines of the application that it was based on South Africa’s implementation of the Rome Statute Act, which had been domesticated into South African law.

Party to Rome Statute

Because South Africa is a party to the Rome Statute, a crime committed internationally is viewed as a crime committed on South African soil, and South Africa is obliged to effect an arrest when asked to do so.

The application was filed against the ministers and director general of the departments of Justice, State Security, International Relations, and Home Affairs; the national commissioner of police, the National Director of Public Prosecutions, the head of the Hawks, and the head of the priority crimes litigation unit of the National Prosecuting Authority.

In terms of the interim order, they are obliged to make sure Al-Bashir does not leave. The Rome Statute does not let diplomatic immunity allow heads of state avoid being summoned to the ICC.

The government is opposing the application. Its counsel Isabelle Ellis told Fabricius they had only received the papers at 10:30 and needed time to prepare.

‘Not enforceable’

She said government would argue the warrant was not enforceable in South Africa. The AU summit would run on Sunday and Monday.

The government intended bringing a legal expert to testify why it believes the warrants are unenforceable. She said they needed at least 3 hours to prepare submissions.

But the SALC wanted an undertaking that he would not leave in the meantime, and Fabricius granted the interim order. News24