The Implications of the Pinochet Decisions for the Extradition or Prosecution of Former South African Heads of State for Crimes Committed Under Apartheid

Abstract

This chapter explores the significance of the findings of the House of Lords for former South African leaders allegedly responsible for crimes perpetrated under apartheid. It then summarises the position of sovereign immunity in South Africa and then outlines the lessons that can be learned from the Pinochet precedent by states considering indicting former apartheid leaders or others who have carried out international crimes. The principle of sovereign immunity, expressed in the maxim par in parem non habet Imperium, meaning that one sovereign state does not adjudicate on the conduct of another, is no longer impervious in national courts, at least in respect of former heads of state. Customary international law provides that crimes against humanity give rise to the application of universal jurisdiction avoiding the many problems associated with limited jurisdiction over treaty crimes and the application of treaties to the nationals of non-states parties.