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

312 Chapter 14
3.4 Immunities and privileges
In accordance with article 27 of the Rome Statute, chapter 2 of the ICC Act
excludes immunity from prosecution conferred by constitutions to heads
of state or government and officials. The Act also provides for the
immunity and functioning of the Courts’ personnel. The purpose of the
privileges and immunities of the officials of the Court, its personnel and
officials and those participating in proceedings of the Court is to safeguard
the integrity and autonomy of the Court. On the basis of fundamental
principles of international law, as a treaty-based international
organisation, the Court and its officials will need to have sufficient
diplomatic status to carry out their responsibilities. When it comes to
immunity of heads of state, section 4(2)(a) of the ICC Act provides:
notwithstanding any other law to the contrary, including customary and
conventional international law, the fact that a person … is or was a head of
State or government, a member of a government or parliament, an elected
representative or a government official … is neither (i) a defence to a crime;
nor (ii) a ground for any possible reduction of sentence once a person has
been convicted of a crime.
In terms of the Act, South African courts are mandated to prosecute a
perpetrator of an international crime, irrespective of their ‘official status’ as
head of state. Support for an argument that section 4(2)(a) has done away
with immunity comes from the Constitution itself as section 232 provides
that ‘[c]ustomary international law is law in the Republic unless it is
inconsistent with the Constitution or an Act of Parliament’. In addition,
section 233 of the Constitution is pertinent as it provides that,
[w]hen interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.
While this may be interpreted to mean that the customary international
law barrier to prosecuting individuals enjoying immunity may be invoked,
this position must be juxtaposed with a consideration of the practical
realities: acting under the complementarity scheme of the Rome Statute,
South African courts are accorded the same power to ‘trump’ the
immunities which usually attach to officials of government as the ICC has
by virtue of article 27 of the Statute. 26 As such, the South African
government’s obligation to end impunity will not be relinquished merely
on account of an accused person raising the argument that they are
26 See Du Plessis (n 7 above) 15.