South African Law on Immunities

Head Of State

This chapter describes South Africa’s law governing the immunity of foreign states and officials, as well as of regional organizations. As the chapter explains, this law is made up of a combination of customary international law, international treaty law, English law, parliamentary legislation, and constitutional law. The chapter begins by describing the domestic status of international law in South Africa. It then describes in detail the 1981 Foreign States Immunities Act, including the various limitations on and exceptions to immunity set forth in the Act. After discussing the immunity of foreign states, it addresses head of state and diplomatic immunities and describes the controversial Bashir case from 2015 concerning a request from the International Criminal Court that South Africa arrest and surrender a sitting head of state. Finally, the chapter discusses the immunity of regional organizations and their staff, in particular the African Union and the South African Development Community.

The Prosecution of Incitement to Genocide in South Africa

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2013/v16i5a2436 ◽

2017 ◽

Vol 16 (5) ◽

pp. 327

Author(s):

Hermanus J Van der Merwe

Keyword(s):

South Africa ◽

International Law ◽

South African ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Legal Systems ◽

Domestic Level

The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result of the horrific effects of acts of incitement before and during the Second World War. Today the crime is firmly established under international law and is also criminalised in many domestic legal systems. History shows that incitement to crime and violence against a specific group is a precursor to and catalyst for acts of genocide. Consequently, the goal of prevention lies at the core of the prohibition of direct and public incitement to genocide. However, it may be said that this preventative objective has thus far been undermined by a general lack of prosecutions of the crime, especially at the domestic level. This prosecutorial void is rather conspicuous in the light of the new vision of international criminal justice under which domestic legal systems (including that of South Africa) bear the primary responsibility for the enforcement of the law of the Rome Statute of the International Criminal Court (Rome Statute), which in Article 25(3)(e) includes the crime of direct and public incitement to commit genocide. This article provides a brief historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda (ICTR). Thereafter it examines the criminalisation of incitement to genocide in contemporary South African law in order to assess South Africa’s capacity to prosecute incitement to genocide at the domestic level. In this regard there are, in theory, various 'legal avenues' for the prosecution of incitement to commit genocide in South Africa, namely: as a crime under the Riotous Assemblies Act 17 of 1956; as a crime under the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act); or as a crime under customary international law pursuant to section 232 of the Constitution of the Republic of South Africa, 1996. The article reflects critically on the viability of prosecuting incitement to genocide in terms of each of these alternatives. The article highlights a number of practical and legal problems as regards the prosecution of incitement to commit genocide under the Riotous Assemblies Act as well as under customary international law. It is argued that the prosecution of incitement to genocide in terms of the ICC Act is preferable, as this would respond directly to an international consensus as regards the unique and egregious nature of genocide by providing for a limited form of extraterritorial criminal jurisdiction. Prosecution under the ICC Act would also reflect the objectives of the Rome Statute pursuant to which South Africa has certain international legal obligations. However, it is submitted that legislative amendment of the ICC Act is needed, since the crime is not explicitly provided for thereby at present. It is submitted that the legislative amendment must provide for the distinct crime of direct and public incitement to genocide in terms of South African criminal law. Such an amendment will remove the existing legal obstacles to the domestic prosecution of incitement to genocide and enable effective prosecution thereof at the domestic level. The proposed amendment will have the effect of strengthening the alignment between South African law and the objectives of the Rome Statute and may have preventative benefits in the long run.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

International Criminal Law ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

The Immunity of Heads of States of Nonparties in the Early Years of the ICC

AJIL Unbound ◽

10.1017/aju.2018.56 ◽

2018 ◽

Vol 112 ◽

pp. 172-176

Author(s):

Dapo Akande

Keyword(s):

International Law ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

Early Years ◽

Senior Leaders ◽

International Crimes ◽

Head Of State ◽

Heads Of State

More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya's head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union,1 but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrest and their inviolability when abroad.2

'South Africa is Not an Accused'

Strathmore Law Journal ◽

10.52907/slj.v3i1.58 ◽

2017 ◽

Vol 3 (1) ◽

pp. 157-175

Author(s):

Jerusha Asin

Keyword(s):

South Africa ◽

South African ◽

International Criminal ◽

Criminal Court ◽

African Union ◽

Judicial Decision ◽

High Court ◽

The Republic ◽

The Government

There is a confrontation between the International Criminal Court (ICC) and state parties, and at this particular point in time, the Republic of South Africa, in connection with the arrest warrants issued by the Court for the President of Sudan in 2009 and 2010. Between 13 and 15 June 2015, President Omar al-Bashir was present on the territory of South Africa for purposes of attending the 25th Ordinary Session of the Assembly of the African Union. Despite judgments from both the ICC upholding the obligation of South African authorities to arrest and surrender President Bashir and parallel domestic proceedings at the South African High Court in which authorities were ordered to prevent the departure of President Bashir from South African territory pending final judicial decision on whether the Government was required to execute the ICC arrest warrants, President Bashir nevertheless departed from the Waterkloof military air base on 15 June 2015, even as Government lawyers assured the High Court in a hearing on the same date that he was still in the country. Only after his plane had safely landed in Khartoum did the same lawyers then notify the High Court that he had left South Africa. This article will analyze this case in the following lines.

South Africa’s Exercise of Universal Jurisdiction

International Human Rights Law Review ◽

10.1163/22131035-00301005 ◽

2014 ◽

Vol 3 (1) ◽

pp. 146-158

Author(s):

Saidat Nakitto

Keyword(s):

South Africa ◽

International Law ◽

South African ◽

Criminal Court ◽

Universal Jurisdiction ◽

Crimes Against Humanity ◽

High Court ◽

The Supreme Court ◽

Court Of Appeal

On 27 November 2013 the Supreme Court of Appeal of South Africa affirmed the decision of the High Court that South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 2002 (icc Act) empowered South African officials to initiate investigations into crimes against humanity committed in Zimbabwe in the absence of the perpetrators in South Africa. This decision was in response to the true interpretation of section 4(3)(c) of the icc Act providing for universal jurisdiction. This paper examines the judgment of this Court, arguing that though customary international law is silent on the requirement for presence of the perpetrators for initiation of investigation, the Court should have given proper examination of this section by taking into consideration of the previous presence of some of the perpetrators in South Africa after the alleged crimes were committed.

Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

International Criminal Law Review ◽

10.1163/15718123-01604003 ◽

2016 ◽

Vol 16 (4) ◽

pp. 703-729 ◽

Cited By ~ 1

Author(s):

Michael Ramsden ◽

Isaac Yeung

Keyword(s):

International Law ◽

Rome Statute ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

State Immunity ◽

Head Of State ◽

International Court

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

Part II Substantive Law, 7 The Third Alternative of Surrender to a Competent International Criminal Tribunal or a Hybrid Tribunal and its Impediments

10.1093/law/9780198823292.003.0007 ◽

2018 ◽

Author(s):

Kittichaisaree Kriangsak

Keyword(s):

International Law ◽

Rome Statute ◽

International Criminal ◽

International Criminal Tribunal ◽

Criminal Court ◽

The Third ◽

Official Position ◽

Head Of State ◽

Substantive Law

The chapter elaborates the practical difficulties and principled opposition to the third alternative of surrender to a competent international criminal tribunal or hybrid tribunals, especially among several States in Africa on the grounds of discriminatory justice and/or the allegedly prevailing rule of customary international law of immunity of the head of State and some other senior State officials. In particular, while Article 27 of the 1998 Rome Statute of the International Criminal Court deems the official position of any person to be irrelevant, Article 98 of the same Statute sets conditions for cooperation with respect to waiver of immunity or consent for surrender of the person, which may not be forthcoming in practice. The author explains how the conflicting rules can be reconciled, if at all.

The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law

African Journal of International and Comparative Law ◽

10.3366/ajicl.2021.0370 ◽

2021 ◽

Vol 29 (3) ◽

pp. 341-361

Author(s):

Linda Mushoriwa

Keyword(s):

International Law ◽

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

International Criminal Law ◽

Clear Understanding ◽

African Union ◽

Contentious Issue ◽

Head Of State

This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.

THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

Malaysian Journal of Syariah and Law ◽

10.33102/mjsl.v7i1.112 ◽

2019 ◽

Vol 7 (1) ◽

pp. 33-56

Author(s):

Fareed Mohd Hassan ◽

Noor Dzuhaidah Osman

Keyword(s):

International Law ◽

Rome Statute ◽

The United States ◽

Trial Chamber ◽

Criminal Court ◽

Criminal Prosecution ◽

Head Of State ◽

Jus Cogens ◽

Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽

10.17159/obiter.v31i1.12376 ◽

2021 ◽

Vol 31 (1) ◽

Author(s):

Ashley Charles Moorhouse ◽

David Abrahams

Keyword(s):

South Africa ◽

International Law ◽

South African ◽

Subject Matter ◽

Review Process ◽

The State ◽

The South ◽

National Implementation ◽

The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause.