In 2009 and 2010, the International Criminal Court (ICC) issued arrest warrants for Sudanese President Omar al-Bashir on counts of genocide, crimes against humanity and war crimes committed in Darfur. In June 2015, al-Bashir visited South Africa - a State Party to the Rome Statute establishing the ICC - to attend a summit of the African Union. Despite the pending arrest warrants, South African authorities failed to arrest and detain al-Bashir for surrender to the ICC. The case was referred to the Supreme Court of Appeal in South Africa. In the first decision of its kind, the judges ruled that the failure to detain al-Bashir was inconsistent with South Africa’s obligations to the terms of the Rome Statute and the national Implementation Act, and thereby unlawful. Any head of state subject to an ICC arrest warrant may thereafter be arrested in South Africa and surrendered to the ICC, overriding their diplomatic immunity as a visiting head of state.
In his lead judgment, Judge Malcolm Wallis relied on two articles by Dapo Akande, Professor of Public International Law at the University of Oxford and an academic affiliate of the Bonavero Institute of Human Rights. Professor Akande and Judge Wallis, a research visitor at the Bonavero Institute last term, met there to discuss the importance of Akande's work in the case and the vital role that legal scholars can play in the rulings of judges around the world.