Prosecuting International Crimes in Africa - PULP - University of ...

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Kit, was adopted. 3 If one looks at the scheme of South Africa’s
implementing legislation, it is clear that this Model Enabling Act informed
South Africa’s own implementing legislation. Moreover, South Africa’s
implementing legislation serves as a model for other African states, both in
terms of substance and procedure. 4
South Africa signed the Rome Statute on 17 July 1998 and ratified it
on 27 September 2000, becoming the 23 rd state party. Within South Africa,
an inter-departmental committee was established to determine whether the
Rome Statute was constitutional and could thus be domesticated. Finding
the Rome Statute constitutional, an explanatory memorandum was
attached to the Rome Statute and it was submitted to Cabinet and then to
Parliament. This implementing legislation, referred to as ‘Implementation
of the Rome Statute of the International Criminal Court Act 27 of 2002’
(ICC Act) was signed into law in August 2002.
South Africa’s endorsement of the ICC is thus beyond question,
subject of course, to the proviso that a State Party should be afforded the
first opportunity to see that justice is served. This is in accordance with the
understanding that international criminal law is intended to be enforced
and international crimes are supposed to be prosecuted at the domestic
level since domestic prosecutions are seen to have more legitimacy than
international prosecutions of international crimes. 5 It is not surprising,
therefore, that South Africa is admired for its conscientious approach to
upholding principles of international criminal law, the rule of law and
ending impunity.
South Africa has not signed the Agreement on Privileges and
Immunities and the public has rejected signing a Bilateral Immunity
Agreement with the USA. By ratifying the Rome Statute and
incorporating its provisions, South Africa has illustrated its political
willingness to pursue national prosecutions if and when necessary. 6 In this
regard, the Preamble to the ICC Act affirms 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’. By virtue of the
process of implementing the Rome Statute domestically, South Africa has
also set an example to other African States, 7 albeit that South Africa’s
rather ambiguous relationship concerning the indictment of Sudanese
3 See the ICC Ratification Kit – Model Enabling Act www.radicalparty.org/tribunal/
ICC_southafrica_model.htm (accessed 18 December 2009).
4 A Katz ‘An act of transformation: The incorporation of the Rome Statute of the ICC
into national law in South Africa’ (2003) 12 African Security Review 27.
5
Cryer et al An introduction to international criminal law and procedure (2009) 54.
6 A Marschik‘The politics of prosecution: European national approaches to war crimes’
in TLH McCormack & GJ Simpson (eds) The law of war crimes (1997) 100.
7
M du Plessis ‘South Africa’s implementation of the ICC Statute: An African example’
(2007) 5 Journal of International Criminal Justice 461.