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

Implementation of the Rome Statute in South Africa 313
immune by virtue of their official capacity. 27 The situation concerning the
arrest warrant for Omar Al Bashir, the Sudanese President, places the issue
of immunity into sharp focus and is discussed further below.
Even in the unlikely event that a court in South Africa refuses to
prosecute a head of state or other official, section 5(6) of the ICC Act states
that a decision by the National Director ‘not to prosecute a person under
this section does not preclude the prosecution of that person in the
International Criminal Court’. Furthermore, article 98(1) of the Rome
Statute entails that states parties have a duty of co-operation with the court,
requiring such states to arrest and surrender to the court persons charged
with an ICC crime. 28 However, article 98(1) regulates the operation of
immunity by providing that a state is not obliged to hand over an
individual to the court if doing so would be ‘inconsistent with its
obligations under international law with respect to the State or diplomatic
immunity of a person … of a third State, unless the Court can first obtain
the cooperation of that third State for the waiver of the immunity’. Article
98(1) would thus apply to an official whose state has not waived their
immunity through article 27, thus requiring the ICC to seek a waiver with
respect to such an official. Thus, South Africa would be prohibited from
extraditing an accused person who may find him or herself on South
African territory but who is a national of a non-party State.
3.5 Procedural considerations and applicable law
Article 88 of the Rome Statute is a provision carrying substantial import as
it obliges states to ensure that the procedures and powers to enable all
forms of co-operation contemplated in the statute are in place nationally.
27 With regard to immunity, amnesties and pardons could have similar results. See J
Dugard 'Possible conflicts of jurisdiction with truth Commissions’ in A Cassese et al
The Rome Statute of the International Criminal Court: A Commentary (vol II) (2002) 699. In
the South African context, art 53(2)(c) of the ICC Statute gives the Prosecutor
discretion to refuse prosecution at the instance of a state or the Security Council where,
after investigation, he concludes that ‘a prosecution is not in the interests of justice,
taking into account all circumstances’. It is envisaged that this provision would become
applicable in the context of a country where amnesty has been granted either by a truth
commission or by the outgoing or incoming government as a political act of reprieve.
Amnesties which are analogous to the South African amnesties granted by the quasijudicial
amnesty committee functioning as part of a Truth and Reconciliation
Commission process established by a democratically elected government may well
constitute a bar to prosecution by the ICC. However, states are not permitted to grant
amnesty for the crimes of genocide, torture and ‘grave breaches’ under the Geneva
Conventions.
28 See Du Plessis (n 1 above) 207. While it has previously been debated whether this
obligation would arise in the case of a head of state of a state which is not a party to the
Rome Statute, it has been proven that non-ratification of the Rome Statute is
insufficient reason to prevent a head of state from being prosecuted as other
mechanisms, such as a Resolution taken by the UN Security Council could entail that a
head of state (such as Sudanese President Hassan Omar Al Bashir) is prosecuted.