On Monday, 8 February 2016, in the Supreme Court of Appeal (SCA), the Peace and Justice Initiative (PJC) and the Centre for Human Rights (CHR), represented by the Legal Resources Centre (LRC), filed joint heads of argument in an application to be admitted as amici curiae (friends of the court) in the matter between the Minister of Justice and Constitutional Development and others v the Southern African Litigation Centre (‘Al Bashir case’).

The Al Bashir case will be heard by the Supreme Court of Appeal on Friday, 12 February 2016. The LRC, on behalf of the PJI and the CHR, have been granted 30 minutes to address the SCA at the hearing. The PJI and the CHR seek to rely on their collective domestic and international law experience to assist the SCA in reaching its decision.

The South African Government is appealing an order of the Gauteng Provisional Division, Pretoria, handed down on 14 June 2015 – and a subsequent judgment confirming the order – which directed the South African Government to arrest the President of Sudan, Omar Al Bashir, who was visiting South Africa as part of the Sudanese delegation at the African Union Summit held in Sandton. Two warrants have been issued by the International Criminal Court (ICC) for President Al Bashir’s arrest.

The South African Government argues that it could not arrest President Al Bashir, despite a court order compelling it to do so, because he enjoyed Head of State immunity.

In their joint heads of argument, the PJI and the CHR submit that the twin factors of the jus cogens nature of the crimes allegedly committed by President Al Bashir (in this case, genocide, crimes against humanity and war crimes, which are completely prohibited under international law) and the ICC’s international nature preclude the application of Head of State immunity to President Al Bashir.

The PJI and the CHR further argue that as a result of United Nations Security Council resolution 1593 (2005), the Rome Statute of the ICC (1998) has been imposed on Sudan with respect to the situation in Darfur and that Sudan is therefore akin to a State party to that treaty. As a result, South Africa would have fulfilled its obligations under international law had it cooperated with the ICC with respect to the case concerning President Al Bashir.

Finally, the PJI and the CHR contend that as a result of obligations arising from the Genocide Convention (1948), the drafting history of the ICC’s Rome Statute, and the need for access to justice for victims of jus cogens crimes in Darfur, South Africa was obligated to facilitate President Al Bashir’s transfer to the ICC.

The PJI is a network of international criminal law professionals. Their aim is to encourage and assist in the national adoption of laws under which crimes against humanity, genocide and war crimes can be prosecuted, and to provide expert technical assistance in such endeavours. The PJI is registered as an NGO under Dutch law and has status as a charitable organisation.

The CHR has been based in the Faculty of Law at the University of Pretoria since 1986. It is an academic department and a non-governmental organisation. Its key endeavours include working towards human rights education in Africa; raising a greater awareness of human rights; the wide dissemination of publications on human rights in Africa; the implementation of international law in Africa; and the improvement of the rights of women, people living with HIV, indigenous peoples, sexual minorities and other disadvantaged or marginalised persons or groups across the continent.

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The LRC is an independent, non-profit, public-interest law clinic, which uses law as an instrument of justice to provide legal services to vulnerable persons or groups.