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

Implementation of the Rome Statute in South Africa 311
incorporated into the ICC Act by way of an amendment Act of
Parliament. 22
3.3 Jurisdiction
Section 4(1) of the ICC Act creates jurisdiction for a South African court
over ICC crimes by providing that:
[d]espite anything to the contrary in any other law of the Republic, any
person who commits a crime as described in the Rome Statute, is guilty of an
offence and liable on conviction to a fine or imprisonment.
This is the traditional principle of territoriality. Extra-territorial
jurisdiction (which deems a crime to have been committed on the territory
notwithstanding that it did not take place there) is provided for in section
4(3) of the Act, which states that the jurisdiction of a South African court
will be triggered when a person commits an ICC crime outside the territory
of the Republic, 23 on condition that he or she falls within the confines of
one or more of the following possibilities:
(a) that person is a South African citizen; or
(b) that person is not a South African citizen but is ordinarily resident in the
Republic; 24 or
(c) that person, after the commission of the crime, is present in the territory
of the Republic (irrespective of whether or not they are a South African
citizen or have a close and substantial connection with South Africa); 25 or
(d) that person has committed the said crime against a South African citizen
or against a person who is ordinarily resident in the Republic (the so-called
passive personality principle, conferring jurisdiction over an individual who
causes harm to one of its citizens abroad).
In the circumstances, the ICC Act grants relatively expansive jurisdiction
to South African courts with regard to crimes provided for under the Rome
Statute.
22 It has been contended by du Plessis (see n 1 above at 136) that these Elements of Crimes
should be incorporated by way of regulations into South Africa law. However, as a
result of the separation of powers doctrine these Elements of Crimes cannot merely be
‘added’ by way of ministerial regulations since original legislation – which the ICC Act
is – cannot be amended by regulations which constitute subordinate legislation, by the
relevant Minister.
23 Du Plessis (n 1 above) 198. See also M du Plessis ‘Goldstone's Gaza Report shows
courage’ Cape Times 8 October 2009, available at http://www.mediareviewnet.com/
index.php/200910081262/Opinion-Article/Goldstone-s-Gaza-Report-Shows-
Courage.php (accessed 20 December 2009).
24 This is referred to as the active and passive personality principle based on the
nationality of the offender or the victim.
25 This is in conformity with the principle of universal jurisdiction, whereby a state
acquires jurisdiction to prosecute the perpetrators of crimes of concern to the
international community on the basis that these perpetrators are common enemies of
mankind.