Max Du Plessis

Assessing the African Union Concerns about Article 16 of the Rome State of the International Criminal Court

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business – will likely arise in future situations from around the world.

Between Apology and Utopia - The Constitutional Court And Public Opinion

ABSTRACT This article focuses on controversial constitutional cases involving ‘national moral issues’ and considers the manner in which the South African Constitutional Court has dealt with the issue of public opinion. While it is generally accepted that the Court has a valid role to play as a guardian of minority rights as against positive morality (its ‘official position’), the question remains of how to deal with the fact that the Courts decisions sometimes lead to a rejection of public opinion. The article argues that it is in the Courts interests to adopt a role which openly engages with South African citizens in those cases where it rejects public opinion in favour of upholding minority rights. In order to evaluate the Courts record insofar as this open engagement is concerned, the article considers three Constitutional Court cases which have involved national moral issues. The author shows that the Court has on the whole delivered judgments which persuasively engage with public opinion (through the use of Rawlsian ‘public reason’), and which attempt to edify the South African public about their ethical identity under the Constitution. In so doing, it is argued that the Court has managed to tread a delicate path between the dangers of apology (being seen as deferent to public opinion) and utopia (losing legitimacy for failing to engage with public opinion). The author also argues that while the Courts educative role needs to be supported by the media and other institutions, the Court can itself adopt certain measures through which it will enhance its teaching role within South African public life.

Complementarity and Africa: The promises and problems of international criminal justice

The idea of an International Criminal Court (ICC) has captured the legal imagination for well over a century. It became a reality on 18 July 1998 with the adoption of the Rome Statute of the ICC. After attracting the necessary ratifi cations the statute entered force on 1 July 2002. After being in existence for just over a year, by November 2003, the court, through the prosecutor, had received more than 650 complaints.The idea of an International Criminal Court (ICC) has captured the legal imagination for well over a century. It became a reality on 18 July 1998 with the adoption of the Rome Statute of the ICC, which entered force on 1 July 2002. After being in existence for just over a year, by November 2003, the court had received more than 650 complaints. A range of organisations and individuals that submitted the first complaints to the prosecutor seem to have fundamentally misunderstood the ICC; to have placed a false hope in the court as a means to provide them justice. The truth is that the courts jurisdiction is limited temporally - it can only exercise jurisdiction on events after 1 July 2002 - and its jurisdiction is limited substantively - it can only consider the most serious crimes of international concern, being genocide, crimes against humanity and war crimes - and until a proper definition of aggression is agreed upon by state parties, it cannot consider complaints about the crime of aggression. Furthermore, the courts jurisdiction is limited geographically. In the case of state parties, the court can exercise jurisdiction over their nationals wherever they may be in the world. But for non-state parties - like the US - the court can only exercise jurisdiction if the guilty American commits his or her crime on the territory of a state party. It is therefore critical to understand the topic that is at issue in this paper : complementarity. Complementarity is perhaps the key feature of the ICC regime. It is thus vitally important to appreciate its significance, and in so doing, to understand both the promises and problems of international criminal justice as exemplified by the ICC.

Transitional Justice: A truth commission for Zimbabwe

An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the States international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.

Fifteen Years On: Central Issues Relating to the Transformation of the South African Judiciary

Abstract At its 52nd National Conference held in Polokwane from 16-20 December 2007, the African National Congress adopted a strongly-worded resolution calling for the transformation of the judiciary to be expedited. The judiciary has also recently attracted controversy due to the ongoing legal travails of ANC President, Jacob Zuma, and allegations regarding improper conduct on the part of Hlophe JP. This is therefore an opportune juncture to step back and consider the transformation of the judiciary over the past fifteen years of SouthAfrica’s constitutional democracy. The article commences with a brief discussion of the role of the judiciary under apartheid. In light of this, the following issues are discussed as components of judicial transformation: the process whereby judges are appointed; the need to change the attitudes of the judiciary; the need to foster greater judicial accountability; and the need for a more efficient judiciary. The conclusion reached is that post-apartheid South Africa has generally made impressive strides towards transforming its judiciary while respecting judicial independence and the separation of powers. However, recent legislative activity, resolutions and statements of the ANC and its alliance partners have not always heeded this approach. Judicial transformation must continue to be pursued but in a manner that is not counter-productive to the constitutional project as a whole.

A rose by any other name: 'biblical correction' in South African schools

ABSTRACT The South African Schools Act 84 of 1996 prohibits corporal punishment in schools. Certain independent Christian schools, under the banner of Christian Education South Africa (CESA), have allowed corporal punishment to be administered to pupils in the belief that this form of correction is an integral part of the Christian faith. One of the rights relied upon by CESA is the right to freedom of religion in s 15 of the 1996 Constitution. This article argues that CESAs free exercise of this right is lawfully curtailed by the South African Schools Act. The justifiability of such curtailment will have to be determined by means of a balancing process. For a court to do justice to CESAs right under s 15, it will first have to determine whether CESAs stance is based on a sincerely held religious belief. Once this has been decided, the court will have to attribute the correct weight to this belief, taking into account such factors as the number of people who subscribe to the belief, and the centrality of the belief to the religion concerned. In CESAs case, the value of corporal punishment (such as it is) will have to submit to the values that the South African Schools Act aims to protect, viz childrens rights to dignity and freedom from cruel, inhuman or degrading treatment. The final section of the article discusses the moral and practical aspects of CESAs disobedience to the law. On the first issue, the article concludes that there is a moral injunction on CESA to obey the South African Schools Act. On the second, the article points out the various practical consequences, such as a charge of assault, that may potentially flow from disobedience to the Act.

Chinese arms destined for Zimbabwe over South African territory: the R2P norm and the role of civil society

In this paper a description is provided of the recent litigation involving the Chinese vessel the MV An Yue Jiang which attempted to discharge a consignment of arms at the Durban harbour in April 2008. That this consignment of arms attracted any attention was due in large part to the early warning and mobilisation of civil society and the media who reported, to the dismay of concerned South Africans and Zimbabweans, that the arms were destined for the Zimbabwean Defence Force. More alarming was the news and subsequent acknowledgment by the South African government that the government’s National Conventional Arms Control Committee had issued a permit which allowed

Serious human rights violations in Zimbabwe: of international crimes, immunities, and the possibility of prosecutions

Abstract From the viewpoint of international criminal law, the serious human rights abuses perpetrated in Zimbabwe have implications for the perpetrators. These implications are discussed, drawing on the jurisprudence of international criminal tribunals and the text of the Rome Statute of the International Criminal Court. Two important international law doctrines are relevant to any attempt to prosecute Zimbabwe’s leaders: the doctrine of responsibility and superior orders, and the controversial doctrine of immunity. Possible avenues for prosecution of Zimbabweans implicated in international crimes include actions before foreign municipal courts and actions by the International Criminal Court. Consideration is also given to a possible prosecution under South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

Darfur Goes to the International Criminal Court (Perhaps)

The authors consider the recent referral by the UN Security Council of the situation in the western region of Sudan (Darfur) for investigation and prosecution to the International Criminal Court. The paper focuses on the context of this referral, especially since the referral signals a capitulation by the United States of America (which had the power to veto the referral) in the face of worldwide pressure for the United Nations to take action against perpetrators of atrocities in Sudan. In considering the referral, the authors point out that the International Criminal Court has been handed a hot potato. Because it is one of the first cases that the court will hear, the spotlight will be on the courts effectiveness as an instrument of international criminal justice. Sudan is not party to the courts statute, however, and accordingly owes the court no obligation to cooperate in the investigation and prosecution of Sudanese offenders.

Two's company, three's a crowd : public interestintervention in investor-state arbitration ( Piero foresti v South Africa ) : current developments / case notes

The legal culture of public interest litigation generally, and amicus curiae interventions specifically, is now fairly well developed in South African domestic litigation. The rules of court have been amended to cater for amicus participation and a body of jurisprudence has developed regarding questions of the admissibility and role of amici. It is not unheard of for an amicus to seek to be admitted even in criminal or commercial matters, and not merely matters in which constitutional issues are the central questions. Our courts are increasingly recognising that certain matters cannot be resolved simply as disputes between the parties, but must necessarily involve the perspectives and voices of organisations or entities that may not have a direct legal interest in the matter in the traditional sense, often asserting (their conceptions of) the public interest. Indeed, the Supreme Court of Appeal (SCA) recently expressed its displeasure with an unmeritorious and churlish objection to the admission of an amicus by visiting an adverse costs order upon the objecting party.