After Al-Bashir: Part II
12 April 2016
In Part I of this brief, I explained that although the decision of the Supreme Court of Appeal in the Southern African Litigation Centre matter, involving Mr Al-Bashir, represents an important victory in the struggle for international justice, it is potentially quite limited in its future scope and impact. I then outlined the nature of South Africa’s political community—a sovereign state that is also a member of the family of nations—and thereafter connected this conception of statehood to crimes against humanity, war crimes and genocide. In doing so, I explained that these crimes, by their nature, harm all people everywhere.
In this brief, I explain why these crimes also directly violate the Constitution. I also argue that the nature of this violation is such that it renders unconstitutional and therefore not binding any rule, either international or domestic, that purports to afford sitting heads of state absolute immunity in relation to such crimes.
Explaining how international crimes violate the Constitution
It is trite that crimes against humanity, war crimes and genocide violate the norms and rules of international law. These crimes, however, also directly violate the Constitution. They do so in at least three ways.
First, they are an affront to the humanness, dignity or humanity of all people everywhere, including South Africans. Thus, they necessarily entail a direct violation of section 10 of the Constitution, which provides that everyone has ‘the right to have their dignity respected and protected’.
Second, they threaten the existence of the family of nations that is partly constitutive of our political identity. As such, they threaten who we are as ‘We, the people of South Africa’, meaning they threaten the existence of South Africa as a constitutional democratic state.
Third, South Africa itself was born out of negotiations that brought an end to apartheid. Its founding and its existence is bound up with a rejection of international crimes. These crimes, therefore, run against and undermine its existence as a community founded on the value of human dignity; that is united in the diversity of its people. They threaten its existence because they are an affront to humanness, dignity or humanity—that is, because they seek to destroy diversity or plurality as such.
Since these crimes directly violate the Constitution, the State has a constitutional duty to arrest and prosecute persons who perpetrate them. 
Further, since they directly violate the Constitution, the exercise of this power would not entail an extra-territorial application of the Constitution. Like private persons who in their capacity as citizens have the power to arrest people who commit certain criminal offences, or institute private prosecutions when the NPA is unwilling to act, a sovereign state in its capacity as a member of the family of nations has the power to arrest or prosecute anyone who commits these crimes.
Like the power of the State to reach into ‘any house’ for the sake of arresting a perpetrator of ordinary crimes, the State as a member of the family of nations can extend its reach anywhere in the shared world—into any territory—for the sake of detaining, arresting or prosecuting perpetrators of international crimes.
When international structures exist for detaining, arresting and prosecuting the perpetrators of these crimes, we must utilise them. When other states are able and willing to act, we should not too readily assume responsibility as the primary actor in bringing these perpetrators to justice. These points, however, relate to the circumstances when the State should exercise its powers, not whether State has such powers—that is, the jurisdiction—to arrest and prosecute all perpetrators of these crimes.
Jurisdictionally speaking, there are no borders when it comes to these crimes.
Immunity: the unconstitutionality of an absolute bar to arrest and prosecution
The Supreme Court of Appeal reasoned that were it not for South Africa’s membership of the ICC, the arrest warrants and section 4(2) of the ICC Act, Mr Al-Bashir would have been immune from arrest and prosecution. In this brief, I have argued that even if South Africa were to withdraw from the ICC, our authorities would have a duty to arrest and prosecute international criminals.
What about sitting heads of state? Assuming that the Supreme Court of Appeal is correct that sitting heads of state ordinarily have immunity under customary international law, does this bar our authorities from pursuing individuals who occupy high political offices? In short, no it does not.
To see why, regard must be had to section 232 of the Constitution, which says that customary international law is law in South Africa only if it is consistent with the Constitution. This compels us to ask the whether a rule of customary international law that absolutely bars arrest and prosecution of sitting heads of state, regardless of the nature of their crimes and the particular circumstances of the case, is consistent with the Constitution. If not, the content of customary international law is legally irrelevant. 
Why do immunity rules exist under customary international law? Their purpose is to facilitate efficient cooperation, communication and dealings between states. They exist for the sake of promoting economic, social, cultural and political interests.
It is indisputable that important interests are served by facilitating efficient dealings between states. This pragmatic justification for immunity, though, will not in all circumstances outweigh the significant moral and policy reasons that require the State to take steps to arrest and prosecute perpetrators of crimes against humanity, war crimes and genocide. Yet, it is precisely this idea—that is, that efficient relations always trump the interests of justice—that a rule granting heads of state, in all cases, immunity from the jurisdiction of South Africa’s criminal courts must claim to be normatively correct.
This basic premise of absolute immunity is fundamentally at odds with the values and rights in the Constitution. This simply cannot be gainsaid. In short, therefore, no rule that purports to afford any person, including heads of state, absolute immunity from criminal prosecution could ever pass constitutional muster.
The decision of the Supreme Court of Appeal marks an important victory. We must not lose sight of this fact. But, it is at best a limited victory. Even if the state is not successful in its appeal to the Constitutional Court, it is likely that this case is only the start of a much larger, longer legal battle that will eventually have to be resolved by litigants relying directly on the form and content of the Constitution.
In this brief I have argued that there is a constitutionally-sourced duty for the state to arrest and prosecute individuals guilty of crimes against humanity, war crimes and genocide. Naked self-interest or even conventional, legitimate economic concerns will rarely justify a failure to pursue justice in such cases. 
We have long-since rejected such a narrow, chauvinistic approach in our engagement with the world—the Constitution requires the state and all of its organs act to prevent impunity, in any form, when it comes to crimes that display a disregard for, or have as their aim to extinguish, the plurality or diversity that characterises human existence.
Importantly, this duty exists in the absence of treaties and legislation requiring South Africa to arrest and prosecute perpetrators of these crimes. For our government, which apparently will do anything to avoid holding people like Mr Al-Bashir to account, this is a constitutional fact that simply cannot be avoided.
Matthew Kruger, Legal Researcher, 12 April 2016
 On why the State has a duty to prosecute, and not just a power, see here.
 Further, as the HSF argued in the SCA, section 4(1) of the Diplomatic Immunities and Privileges Act, 2001, which codifies head of state immunity, can and therefore should be read as entrenching the rules of customary international law relating to immunity only insofar as they are consistent with the Constitution. As such, in the appeal that is now before the Constitutional Court, there is no concern regarding the constitutionality of domestic legislation.
 Supra note 1.