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JAN LHOTSKÝ CYIL 7 ȍ2016Ȏ
These are the three relevant paragraphs of the 1996 Constitution of the South
African Republic with regard to international law:
• Art 231 para 4: Any international agreement becomes law in the Republic when
it is enacted into law by national legislation; but a self-executing provision of an
agreement … is law …
• Art 232: Customary international law is law … unless it is inconsistent with the
Constitution or an Act of Parliament.
• Art 233: When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law …
With regard to the first Article mentioned, South Africa is a dualist country
with a possibility of direct effect of a self-executing treaty. The Rome Statute, ratified
by SAR in 2000, has been enacted into domestic law by an International Criminal
Court Act of 2002 (ICC Act).
In relation to immunities the ICC Act states the following in its Art. 4 para 2:
Despite any other law to the contrary, including customary and conventional international
law, the fact that a person … is or was a head of State or government … is neither …
a defence to a crime; nor … a ground for any possible reduction of sentence once a person
has been convicted of a crime.
Therefore, the waiver of immunities from the Rome Statute has been properly
transformed into South African national law and as such, no immunity of a Head of State
should apply.14
Supporters of the pro-immunities approach could argue with immunities according
to customary international law. However, the South African Constitution states that
customary international law is law unless it is inconsistent with the Constitution or an Act
of Parliament. In other words, also in such a case, the Rome Statute, or rather the ICC
Act, prevails.
9. The Court proceedings related to the arrest of the President al-Bashir in SAR
These seemingly theoretical arguments showed their practical importance when
the Sudanese President Omar al-Bashir came to participate in the African Union
summit in South Africa in June 2015. On 14 June 2015 an interim order was issued
by a High Court in Pretoria compelling respondents to prevent President Omar al-Bashir
from leaving the country until an order is made. 15 Nevertheless, the South African
14 See MAX DU PLESSIS: South Africa’s International Criminal Court Act, available at: http://www.
15 The application was filed against the ministers and director general of the departments of Justice, State
Security, International Relations, and Home Affairs; the national commissioner of police, the National
Director of Public Prosecutions, the head of the Hawks, and the head of the priority crimes litigation
unit of the National Prosecuting Authority. See
grants-interim-order-preventing-Al-Bashir-from-leaving-SA-20150614.