South Africa's obligation to prevent, suppress and punish grave breaches of humanitarian law

Abstract

This study examines South Africa’s legal obligations to prevent, suppress and punish grave breaches of international humanitarian law (IHL). Whereas South Africa signed, ratified, and domesticated instruments that seek to end impunity for serious international crimes committed during armed conflicts, and whereas it is bound by customary IHL to act against perpetrators of grave breaches, it finds itself torn between its conflicting obligations to show solidarity with its counterparts in the African Union and the international community. Its failure, or refusal at best, to arrest, detain and surrender the former Sudanese strongman, Omar Al Bashir, to the International Criminal Court, and its aborted attempt to withdraw from the Roman Statute of the International Criminal Court illustrate its unwillingness to exercise universal jurisdiction for grave breaches of IHL. In the light of these events, this study explores the substantive content of South Africa’s international obligations against perpetrators of grave breaches of IHL within its borders and outside its boundaries. The study unpacks the challenges faced by South Africa in meeting these international obligations. To do so, it examines the international legal framework and domestic legislation on this aspect, as provided in the Constitution of the Republic of South Africa, 1996, defence law and statutes implementing the Geneva Conventions and the Rome Statute of the International Criminal Court. The study concludes by proffering recommendations to enhance South Africa’s fulfilment of its international obligations to end impunity for serious violations of IHL by repressing, suppressing and punishing grave breaches.