War, Violence, Human Rights, and the Overlap Between National and International Law: Four Cases Before the South African Constitutional Court
Both violence and international norms on human rights have become globalized. Formerly rigid systems of sovereignty become porous as the enemies and the friends of the rule of law show equal and opposite disregard for State boundaries. Judges in national courts are obliged to put aside their usual textbooks and cases, and open their eyes to legal scholars and commentators like Brownlie and Cassese. Four cases in the ten-year history of South Africa's Constitutional Court have exemplified these points. In each the Court was under pressure because of time--in three because events were unfolding so rapidly, and in one because the proceedings had dragged on for so long. All were about the law's response to extreme forms of organized violence. In Azanian Peoples Organisation (“AZAPO”) v. President of The Republic of South Africa, the violence was by past State officials against their own citizens, and the issue was whether in the light of international law norms, amnesty could now be granted to the perpetrators. In State v. Basson, the charge was past violence by South African official against nationals of a neighboring country, and the question raised was whether the international duty of the State to prosecute war crimes had a bearing on the decisions made at the trial and on appeal. In Mohamed v. President of the Republic of South Africa, the violence had been committed against the U.S. embassy in Tanzania, and the issue was whether a suspect found on South African soil could be handed over to the U.S. Federal Bureau of Investigation (“FBI”) without access to a lawyer, and without the U.S. authorities giving a prior assurance that the suspect would not be subjected to capital punishment. Finally, Kaunda v. President of the Republic of South Africa, turned on whether South African mercenaries, who had been captured in a neighboring State and threatened with prosecution and capital punishment after an unfair trial in a third State, could claim the right to be extradited back to South Africa and to get diplomatic protection from the South African authorities. I will deal with each case in turn, and do so in a narrative rather than analytical manner. The objective is not to subject the reasoning of the Court to close scrutiny--that will be left to others who were not directly involved in the matters. The purpose is limited to indicating the kinds of international law issues with which a contemporary national court has been engaged. In particular, the extracts from our judgments which appear in the following pages demonstrate the evolution of an intricate and restless interpenetration between international and domestic law that is likely to grow in the years to come.
War, Violence, Human Rights, and the Overlap Between National and International Law: Four Cases Before the South African Constitutional Court,
28 Fordham Int'l L.J. 432
Available at: https://ir.lawnet.fordham.edu/ilj/vol28/iss2/6