Breaking the silence: the treatment of ius cogens in Zimbabwe Torture Docket and Al Bashir


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The South African trajectory of the litigation in the Al Bashir case ended at the Supreme Court of Appeal (SCA). The fact that the case never reached the Constitutional Court (CC) has significant implications. It means that the apex court did not have the opportunity to make authoritative pronouncements on South Africa’s obligations under the Rome Statute of the International Criminal Court, and that the it did not resolve the question whether sitting heads of state charged with ius cogens crimes – that is, crimes prohibited under peremptory norms of public international law – are protected by immunity before national courts. Had the case proceeded to the Constitutional Court and had it highlighted the ius cogens nature of the crimes with which Al Bashir is charged, this would have set a correct and important precedent for future cases of this kind. This article examines the flaws in the reasoning of the SCA in the Al Bashir case, focusing on the SCA’s thin and inadequate treatment of the relevant norm of ius cogens. The recourse to and application of ius cogens norms has been under explored in the South African context. Before the CC, the concept has been neglected, despite the imperative of section 232 of the Constitution. To illustrate this neglect, the cases of Azapo, Wouter Basson and the so-called Zimbabwe Torture Docket case will be analysed. These three cases all concerned the adjudication of international crimes. The Azapo and Wouter Basson cases can further be described as ‘transitional justice cases’ since they dealt with the prosecution of state-sponsored crime during apartheid. The nexus of these cases with ius cogens norms is inescapable; and the silence of the CC especially stark.
Original languageEnglish
JournalConstitutional Court Review
Issue number1
Publication statusPublished - Dec 2019


  • immunity
  • lus cogens
  • transitional justice
  • norm conflict
  • Al bashir


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