After Al-Bashir: Part I
12 April 2016
Last Friday, 8 April 2016, the Minister of Justice and others filed papers in the Constitutional Court. They are appealing the Supreme Court of Appeal’s finding that government’s failure to take steps to arrest and detain, for surrender to the ICC, Mr Al-Bashir when he visited South Africa in 2015 was unlawful. In this two-part brief, Matthew Kruger considers some of the limits of the SCA judgment, in light of government’s professed scepticism of the ICC, and suggests a way forward in this and related matters—in short, regardless of whether South Africa is a member of the ICC, the state has a constitutional duty to take steps to arrest and prosecute persons like Mr Al-Bashir.
An important, but limited, victory
The Supreme Court of Appeal, on 15 March 2016, delivered judgment in Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre.  This case concerned Mr Omar Al-Bashir—the dictator of Sudan, accused of murder, rape, torture, extermination and pillaging, all of which led to the death of more than 300,000 people and the forced displacement of more than 2.5 million people.
The 113 paragraphs of the majority judgment, written by Wallis JA, concluded that the failure by government to take steps to arrest and detain, for surrender to the International Criminal Court (‘the ICC’), Mr Al-Bashir during his visit to South Africa on 13 June 2015 was unlawful.
The decision is a victory for the victims of these immense crimes. It provides their families with hope that justice may yet be done. Importantly, the decision is also a boost to the legitimacy and authority of the international instruments like the ICC. But, we must not be too quick to celebrate. Apart from the fact that the government has appealed the decision, the reasoning of the SCA is in fact very narrow:
As a sitting head of state of a country that is not a member of the ICC, Mr Al-Bashir would ordinarily have immunity under customary international law.
Immunity, however, was not applicable in this case for three connected reasons:
South Africa is a member of the ICC.
The ICC had issued two warrants for the arrest of Mr Al-Bashir, over whom (it was conceded by the state on appeal) the ICC also has jurisdiction.
Section 4(2) of the Implementation of the Rome Statute of the International Criminal Court Act (‘the ICC Act’), read with other sections of this Act, has the effect of extinguishing immunity as a defence to the prosecution of sitting heads of state by the ICC.
Since there is no immunity in cases involving the ICC, South Africa was obliged under the ICC Act, read with the Rome Statute, to give effect to the arrest warrants.
Such judicial restraint, a skill that our higher courts do not always successfully display, is commendable. That said, the limited nature of the court’s reasoning provides government with a number of options should it wish to neutralise the substantive relevance or impact of the finding going forward.
A long-term option, already mooted by the National General Council of the ANC, would be for South Africa to withdraw from the ICC. Withdrawal will not excuse South Africa from its obligations under the Rome Statute for at least a year. It will also not excuse it from the obligations incurred whilst a member of the ICC. But, given premise 2(a) above, withdrawal would ultimately render the judgment irrelevant.
A more immediate option would be for Parliament to amend the ICC Act. Given premise 2(c) above, Parliament could simply amend section 4(2) so that it does not have the effect of extinguishing immunity for individuals like Mr Al-Bashir (who are heads of state of countries that are not members of the ICC). Again, such a move would gut the judgment of much of its relevance—and, it might even do so immediately, without the time-lag that accompanies withdrawal from the ICC.
Given the limitations of the judgment and the apparently chauvinist ambitions of the ANC, what is next for those of us who happen to think that South Africa and its state institutions should do its best to arrest and prosecute tyrannical warlords who murder, rape, torture and exterminate entire peoples?
In a previous series of briefs, I argued that the ‘duty to prosecute international and heinous crimes of this nature is not created by international law or by domestic legislation, for the duty is immanent in the structure, text and values of the Constitution. The source of this duty is the Constitution itself.’ Importantly, ‘this duty exists even in the absence of international treaties and domestic legislation requiring South Africa to prosecute.’ 
In the Supreme Court of Appeal, the Helen Suzman Foundation intervened as amicus curiae, making a similar argument. Ultimately, the court took a narrower approach to resolving the case. But, as I have explained, this approach might have limited relevance going forward.
As such, in this brief I explain why the duty to arrest and prosecute individuals like Mr Al-Bashir is in fact found in the Constitution itself, quite apart from either South Africa’s (now in doubt) membership of the ICC or the content of the ICC Act.
South Africa as a member of the ‘family of nations’
Section 1 of the Constitution says that South Africa is ‘one, sovereign, democratic state’. It is sovereign, distinct and independent. It has a particular political identity, which is announced in the Preamble with the words: ‘We, the people of South Africa’.
The Constitution, however, does not conceive of South Africa as absolutely sovereign. It is not a political island. It is one of some 200 sovereign and independent political communities that constitute the international community. In recognition of this reality, the Preamble states that the Constitution was adopted ‘so as to’ enable South Africa ‘to take its rightful place as a sovereign state in the family nations’.
So, South Africa is not only a sovereign state, but is also part of a larger political community. Indeed, one of the principal reasons why our first ‘freely elected representatives’ adopted the Constitution was so that ‘We, the people’ could ‘share . . . the world . . . with the community of nations’.  Like South Africa, the international community has a distinct political identity. Just as ‘South Africa belongs to all who live in it, united in our diversity’,  so South Africa as one, sovereign, democratic state shares the world as a member of the community, or family, of nations.
The Constitution, therefore, has a particular conception of statehood. South Africa has a basic political identity. But, this identity is essentially bound up with its membership of the international community. This fact, we see below, shapes our understanding of the nature of all rights, duties, powers and privileges contained in the Constitution.
The nature of crimes against humanity, war crimes and genocide
Crimes against humanity, war crimes and genocide are unique.
They share features with other wrongs—civil and criminal—such as the requirements of conduct, harm, causation and fault. What distinguishes them from civil wrongs and ‘ordinary’ criminal wrongs, though, is similar to what distinguishes ordinary crimes from civil wrongs (like breach of contract, delict and unjust enrichment). Whereas civil wrongs harm particular victims and their dependents, crimes harm the community. They violate the shared norms that go towards constituting it as that community; they harm the community as such. What distinguishes crimes from civil wrongs, therefore, is that all of us suffer the harm when a crime is committed.
Like ordinary crimes, crimes against humanity, genocide and war crimes do not only harm the immediate victims. They harm all of us. The nature of the ‘us’ that they affect, however, is what distinguishes them from ordinary crimes. Whereas most crimes harm a particular community, war crimes, crimes against humanity and genocide harm the international community as a whole—they harm the ‘family of nations’. The harm is not dependent on particular political ties, or community affiliation. Regardless of who commits them, where they are committed, or against whom they are committed, we are all harmed.
These crimes harm all people in at least two ways.
First, they are an affront to the value of humanness, that is, they infringe our humanity or our human dignity. They violate that which makes us human, as they entail an attack on the human status as such. They are an affront to the essence of humanity because they, unlike ordinary crimes, are characterised by a total disregard for, or have as their aim to extinguish, the plurality or diversity that characterises human existence. In short, they seek to destroy humanity.
Second, they erode international peace and security, and they violate the most basic norms that must be shared by all people for us to interact in a way that constitutes this family of nations. In both ways, they threaten the existence of the family of nations. Since who we are as political or social and, therefore, human beings is tied up with our membership of this family, a threat to it is necessarily a threat to our existence—that is, to our being—in the world.
After Al-Bashir: Part II
In the next brief, I explain how these crimes directly violate our Constitution, and I argue that the nature of this violation renders unconstitutional and invalid any norm—international or domestic—that purports to afford sitting heads of state, regardless of the circumstances, immunity in relation to such crimes.
Matthew Kruger, Legal Researcher, HSF, 12 April 2016
 Mandela, ‘South Africa’s Future Policy: New Pillars for a New World’ (1993) 72 Foreign Affairs 86-97.
 Preamble to the Constitution.