Briefs

Karel | Dec 05, 2017
After Al-Bashir: Part II
Apr 12, 2016
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Matthew Kruger

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.

After Al-Bashir: Part I
Apr 12, 2016
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Matthew Kruger

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.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – IV
Oct 27, 2015
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Matthew Kruger

In this final brief I consider two issues. First, is the power afforded to the NPA under section 179(2) of the Constitution discretionary and, if so, what is the relevance of this fact? Second, does the NPA have a duty to prosecute foreign nationals who prima facie appear to have committed genocide, crimes against humanity or war crimes and, if so, what is the relevance of this fact? Before addressing these two issues, though, I will provide a brief summary of the conclusions of the first three briefs. According to the SALC decision, the SAPS has a duty to investigate allegations against foreign nationals of crimes against humanity. In coming to this finding, Majiedt AJ said that the NPA does not have a duty to institute criminal proceedings; it has a discretionary power. The concepts of duty and discretion, though, are not mutually exclusive, as Majiedt AJ appears to have assumed. The source of the court’s mistake was its insufficiently thorough analysis of the relationship among ‘power’, ‘duty’ and ‘privilege’. Whether a power is accompanied by duties and/or discretion is a normative question, the answer to which requires consideration of the reasons for and against vesting the NPA with different types of power.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - III
Oct 27, 2015
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Matthew Kruger

In the first two briefs of this series I outlined the fact that, according to the SALC decision, the SAPS has a duty to investigate allegations of crimes against humanity. I explained, however, that in coming to this conclusion, Majiedt AJ said that the NPA has the power to institute criminal proceedings, but does not also have a duty; rather, it just has a discretion. In other words, he thinks that where a power is discretionary, the person vested with that power does not have a duty to exercise it. I concluded the second brief, however, by explaining that the concept of a duty and the concept of a discretion are not mutually exclusive. In this brief, I provide a possible reason for why the court thought otherwise.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind – II
Oct 27, 2015
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Matthew Kruger

In the first brief I explained that the purpose of this series of four briefs is to determine whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed crimes against humanity, war crimes and genocide. I indicated that I think such a duty does exist and that this duty is sourced in the Constitution itself. My explanation of why this duty exists began with an outline of the Constitutional Court’s judgment in the SALC decision, a case dealing with the duty of the SAPS to investigate foreign nationals accused of crimes against humanity, war crimes and genocide. I ended the first brief by claiming that the finding of the court that the NPA has a discretion but not a duty to institute criminal proceedings presents certain problems—especially given the decision by the ANC to withdraw South Africa as a member of the ICC. In this second brief, I will explain the significance of the Constitutional Court’s conclusion and I will begin to interrogate the basis of this conclusion.

The power and the duty of the NPA to prosecute genocidaires, war criminals and other enemies of all humankind - I
Oct 27, 2015
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Matthew Kruger

This is a series of four briefs. In this series I consider whether the NPA has a duty to prosecute foreign nationals who prima facie appear to have committed genocide, war crimes or crimes against humanity. I conclude that although the NPA has a discretion when exercising its power to institute criminal proceedings, it also has a duty to prosecute alleged perpetrators of such crimes. This duty is grounded in the Constitution, with domestic legislation and international law concretising, particularising and duplicating this duty. This conclusion has important implications for any decision by the NPA not to prosecute alleged perpetrators of such crimes. It also means that South Africa’s membership of the ICC is not critical to the NPA’s duty to prosecute such persons. The arguments that I make in this series include a fair amount of legal and conceptual analysis. As such, the ideal approach to reading this series of briefs would be for the four briefs to be read in a single sitting (or, at least, without much break in between reading each brief). In the likely event that such dedication is not possible, however, I have provided short summaries of the preceding briefs in the second, third and fourth briefs of this series. These three summaries, I hope, will be adequate to remind the reader of the more essential arguments of the preceding briefs.