The impact of bill of rights litigation on state practice in international criminal law: An analysis of the jurisprudence of the South African Constitutional Court
The proliferation of international law principles into the domestic sphere has taken foothold in many jurisdictions today. To a large extent, this can be attributed to the fact that most constitutions and bills of rights are derived from or closely mirror the provisions of key international instruments aimed at protecting human rights and at fighting impunity for international crimes. Needless to say, this overlap between international law norms and domestic law norms has also created conflict in the sphere of governance, sovereignty and the pursuit of criminal justice at the international level. Recent developments in South African bill of rights litigation cases involving foreign dignitaries bear testimony to this conflict. Not only is there a conflict of norms, there also seems to be conflict between the different arms of government, leading to the executive expressing its desire to withdraw from major international criminal law mechanisms. Despite these unintended negative consequences, there exists a need to analyse how these various litigation processes have fashioned South Africa’s state practice at the international level.
Keywords: norm conflict, dualism, state practice, bill of rights litigation