Court to settle al-Bashir wrangle
South Africa has a duty under international law to respect the immunity of the serving head of a foreign state.
Under South African law, it would be a crime to violate this immunity.
This is one of the arguments presented to the Supreme Court of Appeal by the government last week in its appeal against an order of the Pretoria High Court in June.
The court held that the government's decision not to detain Sudanese President Omar al-Bashir was inconsistent with the constitution.
Al-Bashir came to this country for the African Union summit in June, despite a warrant for his arrest having been issued by the International Criminal Court, which wants to try him for war crimes.
South Africa, as a signatory to the Rome Statute, was bound to execute the warrant.
The Southern Africa Litigation Centre sought the execution of the ICC warrant.
A court order instructing the state to ensure that al-Bashir was prevented from leaving this country was ignored.
The Supreme Court of Appeal will hear the matter on February 12. The government petitioned it following the High Court's refused to grant it leave to appeal.
The court must rule on whether the serving head of a foreign state enjoys immunity against arrest in South Africa, irrespective of a warrant for his arrest issued by the ICC.
In its heads of argument for the Supreme Court of Appeal, the government said immunity was a fundamental principle of international law and there had been no development of customary international law that abolished the immunity of a serving head of state.