Al-Bashir, and Cursus Curiae of the ICC and South African Supreme Court.

By Sujoy Sur

South African executive’s open defiance of its Supreme Court’s order to arrest Omar Hasan Ahmad Al-Bashir is an issue which had attracted a great many concerns from many corners of the international arena, and rightly so. The concern is that Mr. Al-Bashir is an international criminal and South Africa, a country which  has signed the Rome Statute (ICC) and is a committed actor to international peace and security (member of UNSC and UN Charter), should have have acted in accordance with International law. Instead, South Africa invited Al-Bashir to the African Union summit and allowed him to leave the country despite the Court’s order.


Omar Al-Bashir is the president of Sudan. Yes, the same country which got divided into two, into a new South Sudan, which went on to become the 193rd member of the UN General Assembly (UNGA). A referendum was held in January, 2011 in which majority of the population (99.83%) people voted for a South Sudan. The reason for it’s independence, so to speak, are intertwined with that Al-Bashir’s indictment. South Sudan was deeply affected by Civil Wars which had torn the region apart. The first Sudanese civil war lasted from 1955-1972, the improper culmination of which lead to a second Sudanese civil war from 1983-2005. Many atrocities were committed during this period, out of which Omar Al-Bashir was held “individually criminally responsible for genocide, crimes against humanity and war crimes” committed in Darfur, since 2003. Allegations were pitched against Al-Bashir formally by the Chief Prosecutor of ICC, Luis Moreno Ocampo, in July 2008. An arrest warrant was issued against him by a Pre-Trial chamber composed of judges Akua Kuenyehia of Ghana, Anita Usacka of Latvia, and Sylvia Stenier of Brazil indicting him on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians).

The Imbroglio 

Sudan, however claimed that since it is not a member of ICC as it had not signed the Rome Statue, it is not bound to execute the warrant of arrest. To this, UNSC by a the Resolution 1593 (2005) referred Sudan to ICC, which then gives jurisdiction to ICC over Sudan, making it obligatory on Sudan’s part to co-operate with ICC. But, since then it is not only Sudan but actions of other states which has flown in the face of ICC and its determination to arrest Al-Bashir.

Cursus Curiae

A very important part of International Law, including its basic jurisprudence, is how the law is read, with an emphasis on its process. The procedure adopted by international actors and institutions form the “course” of international law. This procedure and course of international law is to be understood jurisprudentially by the phrase cursus curiae, as in the phrase cursus curiae est lex curiae: the course of the court is the law of the court. The relationship of international institutions and their relationship with the court sets the tone of international law, in turn forming a part of its practice, ultimately forming a part of International Law, customarily so to speak.

ICC’s determination and efforts to implicate and arrest has been undermined by many countries. In this case, it is South Africa. The South African Supreme Court passed an order to arrest Omar Al-Bashir, which was defied by the action of the executive by harbouring Al-Bashir out of the country. Besides putting the Supreme Court of South Africa in a compromising situation, this speaks volumes against the executive intent of international actors towards ICC.

South African court issued Al-Bashir’s order of arrest on the basis of two reasons. Firstly, on the basis of its Constitution. South Africa’s constitution under the following section appreciates international law and directs the court to take it into account:

 CHAPTER 2 Section 39(1)

1. When interpreting the Bill of Rights, a court, tribunal or forum-

    1. b..must consider international law; and

 CHAPTER 11 Sec. 198

198. The following principles govern national security in the Republic-

    1. […] 
    2. c..National security must be pursued in compliance with the law, including international law.

 CHAPTER 11 Sec. 199 (5)

5. The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.

 CHAPTER 11 PART A 200 (2)

2. The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.

 CHAPTER 14 PART A 233  

Application of International Law: When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

In light of these Constitutional principles, the South African Supreme Court ordered the Arrest of Al-Bashir. Secondly, it is the international scheme of international criminal law which was considered by the Court. It’s violation by the executive, indirectly, disregards the ICC as the Supreme Court passed the order considering the fact that South Africa has signed the Rome Statute, also that it is a member of UNSC, and also in accordance with the general obligations to maintain international peace and order. This, besides creating a tension in South Africa on the constitutional front, is also undermining the rule of law, on both National and International planes. This would also impliedly give the idea that ICC is not to be taken seriously and it’s principles can be compromised with in such cases of diplomacy, which would ultimately mean  that ICC is not a strong authority at all.  The cursus curiae in this case is certainly a negative one for the ICC, and in some ways for the South African Supreme Court.

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