Karel | Apr 04, 2018
Immunity of heads of states: The Al Bashir case

In both the South African Supreme Court of Appeal and the International Criminal Court, the Al Bashir case centred on immunity enjoyed by heads of state. Both courts concluded that President Omar Al Bashir did not enjoy immunity on his June 2015 trip to South Africa. This brief outlines the basis of each court judgment as it relates to immunity and concludes that its application is often open to interpretation.

After Al-Bashir: Part II

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

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.