Remember that whole stink about how we just let a man wanted for crimes of genocide waltz out of our country untouched? It’s all kind of died down a little hasn’t it, but that doesn’t mean it’s not worth rehashing how Sudanese President Omar al-Bashir managed to escape the clutches of the ICC.

Whilst judges in the Pretoria High Court ruled that al-Bashir should be arrested for crimes against ethnic groups in Sudan the state has begun proceedings to have that ruling overturned. Below from the Mail&Guardian:

The state wants to appeal the judgment, which held that South Africa had a legal duty to hand al-Bashir over to the ICC.

The state filed an application for leave to appeal that judgement in the Supreme Court of Appeal this week.

So why does the state feel they have a case and what lies at the crux of the matter? Here comes the money shot:

At the heart of the state’s case is its belief that the high court made a fundamental mistake: instead of asking “whether a Cabinet resolution coupled with a ministerial notice is capable of suspending this country’s duty to arrest a head of state”, the court should have asked whether there is a duty to arrest a serving head of state under South African law at all. And, if such a duty exists, the court should have asked whether any “countervailing” duties exist, and how to resolve any potential disputes between these two duties.

Al-Bashir’s immunity was granted by ministerial notice, which gave immunity to delegates attending the AU summit. The state says this immunity precluded the ICC’s arrest warrant…

Government says the court did not properly interpret the Implementation Act in accordance with international law. The Act’s full title is the Implementation of the Rome Statute of the International Criminal Court and it is the piece of legislation that binds South Africa to co-operate with the ICC in terms of domestic law.

Right that’s some of the legalities taken care of, let’s consider then how the government is reacting to some scathing attacks from many of the country’s top legal minds:

ANC secretary general Gwede Mantashe had accused the judiciary previously of seeking to “arrest the functioning of government”…Mantashe said certain Constitutional Court judgments showed that parts of the judiciary were “oppositional” to government.

In an interview with City Press, Mantashe accused the judiciary of “judicial purism” and said of the al-Bashir judgment: “Court orders like this will from time to time be disregarded”…

The ANC has since said South Africa should withdraw its participation from the ICC.

Take that pesky courts who attempt to enforce the law that governs this country, when those at the top don’t like your findings they’ll just ignore them – despite what they may have said in the past.

[source:mg]