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

310 Chapter 14
further to provide that the failure to co-operate can, amongst others, lead
to a referral of the state to the Security Council. The two provisions read in
conjunction imply that complementarity obliges South African courts to
investigate and prosecute the ICC offences of crimes against humanity,
war crimes and genocide (and perhaps soon, the crime of aggression) at the
national level and only if the courts at the national level are unwilling or
unable to investigate or prosecute, may the ICC intervene in order to indict
those who are alleged to have committed such crimes. 18 The threat of a
referral to the Security Council is seen to compel a state party to undertake
its obligations to the full extent possible.
3.2 Core crimes and the elements
As far as subject-matter jurisdiction of the ICC is concerned, the Rome
Statute codifies the elements which make up the crimes of genocide, war
crimes, and crimes against humanity. States party to the Rome Statute are
obliged to take steps to prohibit, as a matter of national or domestic law,
the crimes or conduct described in the statute. 19 Since the ICC Act has
incorporated the Rome Statute’s definitions of the core crimes through a
schedule appended to the Act, part 1 of Schedule 1 of the Act follows the
wording of article 6 of the Rome Statute in relation to genocide, part 2 of
the Schedule mirrors article 7 of the Statute in respect of crimes against
humanity, and part 3 does the same for war crimes as set out in article 8 of
the Statute. 20
Notwithstanding the incorporation of the definitions of international
crimes, neither the ICC Act nor Schedule 1 refers specifically to article 9 of
the Rome Statute on Elements of Crimes. 21 This is potentially fatal since
the Elements of Crimes are vital to the effective enforcement of the ICC
Act as they aid the interpretation and application of the definitions of the
international crimes falling within the jurisdiction of the Rome Statute.
However, it may be argued that since the three crimes are incorporated
into the Act, the South African courts should be able to take judicial notice
of the elements of the crimes within the parameters of section 35 of the
Constitution. Alternatively, these Elements of Crimes should be
18 Du Plessis (n 1 above) 200.
19 M du Plessis ‘Complementarity and Africa: The promises and problems of
international criminal justice’ (2008) 17 African Security Review 157.
20 Du Plessis (n 10 above) 14.
21 ‘Finalized Draft Text of the Elements of Crimes’ (PCNICC/2000/INF/3/Add.2). The
Elements of Crimes is a document adopted in June 2000 by the Preparatory
Commission for the International Criminal Court.