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

Implementation of the Rome Statute in South Africa 307
President Omar Al Bashir has served to impair South Africa’s reputation
as an ardent adherent to the rules of international law to some extent.
Prior to the ICC Act, South Africa had no municipal legislation on the
subject of war crimes or crimes against humanity. The principle of nullum
crimen sine lege would most probably have constituted an impediment to the
prosecution of international crimes recognised by customary international
law in South African domestic courts 8 as prosecutions are unlawful and
invalid in the absence of domestic legislation specifically penalising
conduct amounting to grave breaches of customary international law. 9
Therefore, the ICC Act ensures that the jurisdiction of South African
courts to prosecute ICC crimes is not inhibited and that the South African
government co-operates with the court.
Impetus has been given to South Africa’s ability to investigate and
prosecute international crimes by virtue of the establishment of the Priority
Crimes Litigation Unit (also known as the Hawks), which is dedicated
entirely to ensuring the effectiveness of South Africa’s implementing
legislation. Accordingly, ICC legislation gives South African authorities
the power to investigate and prosecute acts of genocide, crimes against
humanity and war crimes, no matter where those acts have been
committed. This applies even if the perpetrators are not South African
nationals. In order to give meaningful effect to the Rome Statute, the ICC
Act has three aims: First, it intends to do justice to the complementarity
scheme built into the Rome Statute whereby states are expected to
prosecute individuals within their national jurisdictions for crimes the ICC
ultimately has jurisdiction over. Secondly, it endeavours to ensure that
South Africa is able to co-operate fully with the ICC, and thirdly, it enacts
into South African domestic law the substantive offences the ICC may
assert jurisdiction over, being the core crimes of genocide, crimes against
humanity, and war crimes. 10
2 The domestication of the Rome Statute in South
Africa
The South African government prioritised the domestication of the Rome
Statute in South Africa. The procedural prescripts for such domestication
were complied without any delay. In this regard, an inter-departmental
committee was established to determine whether the Rome Statute is
8 Du Plessis (n 1 above) 196.
9 See S v Basson 2007 (3) SA 582 (CC) where the court found it unnecessary ‘to consider
whether customary international law could be used … as the basis in itself for a
prosecution under the common law’ (para 172, fn 147).
10 Du Plessis M ‘Bringing the International Criminal Court home – the implementation of
the Rome Statute of the International Criminal Court Act 2002’ (2003) 16 South African
Journal of Criminal Justice 2.