South Africa
Max du Plessis
Section: The ICC Statute and Commonwealth States
Permanent Link:
http://vlex.com/vid/south-africa-43096944
Id. vLex: VLEX-43096944
1 A Short History of Domestic Prosecutions of International Crimes Prior to Implementing Legislation 2 Implementing Legislation 2.1 Title 2.2 When in force 2.3 Government departments 2.4 Amendments to existing domestic legislation/laws in force 3 Co-operation with the ICC 3.1 Arrest and surrender 3.1.1 The procedure involved in the arrest process 3.1.2 The procedure involved in the surrender process 3.1.3 Constitutional/human rights concerns 3.2 Other forms of assistance to the court 3.2.1 Forms of assistance offered to the Court in fulfilment of Article 93 of the Rome Statute 3.2.2 Obligations outside the mutual assistance context 3.2.3 Enforcement of sentences 4 Incorporating the Crimes 4.1 Measure and extent of incorporation 5 Jurisdiction of Domestic Courts and Principles of Liability 5.1 Grounds of jurisdiction 5.2 Temporal jurisdiction 5.3 Principles of liability 6 Rights of the Accused 7 Available Defences 8 Immunity, International Crimes and Domestic Courts 9 Trial Procedure and Punishment in Domestic Courts 10 Article 98 Agreements 10.1 Government response to American attempts to conclude Article 98 agreements
South Africa
1 A Short History of Domestic Prosecutions of International Crimes Prior to Implementing Legislation No domestic prosecutions of international crimes have taken place in South Africa. Prior to the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ('the ICC Act'), South Africa had no municipal legislation on the subject of war crimes or crimes against humanity.1 Although customary international law forms part of South African law, a South African court confronted with the prosecution of a person accused of an international crime would have been hard pressed to convict, since the principle of nullem crimen sine lege (no crime without a law) would probably have constituted a bar to any such prosecution.2 The same principle would most likely have also put paid to prosecutions under the Geneva Conventions of 1949. South Africa has not incorporated the Geneva Conventions into municipal law nor, prior to the ICC Act, enacted legislation to punish grave breaches.3 2 Implementing Legislation 2.1 Title The Implementation of the Rome Statute of the International Criminal Court Act No. 27, 2002. 2.2 When in force The ICC Act came into force on 18 July 2002 after promulgation by the President in the Government Gazette.4 2.3 Government departments The ICC Act takes seriously the 'complementary' obligation on South African courts to domestically investigate and prosecute the ICC offences of crimes against humanity, war crimes and genocide. The preamble, for instance, speaks of South Africa's commitment to bring ".. .persons who commit such atrocities to justice... in a court of law of the Republic in terms of its domestic law where possible". And section 3 of the Act defines as one of its objects the enabling, "as far as possible and in accordance with the principle of complementarity..., the national prosecuting authority of the Republic to adjudicate in cases brought against any person accused of having committed a crime in the Republic and beyond the borders of the Republic in certain circumstances". The ICC Act gives effect to the complementarity scheme by creating the structure necessary for national prosecutions under the ICC Statute (the structure is created in terms of Chapter 2 of the Act, entitled 'Jurisdiction of South African Courts and Institution of Prosecutions in South African Courts in Respect of Crimes'). The procedure for the institution of prosecutions in South African courts is set out in section 5 of the Act. This procedure involves different governmental departments and officials. First, the ICC Act requires that the consent of the National Director of Public Prosecutions must be obtained before any prosecution may be instituted against a person accused of having committed a crime (s 5(1 )).5 The National Director must, when reaching a decision about a prosec...
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