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

314 Chapter 14
While the ICC Act has not incorporated part 3 of the Rome Statute
which includes what it described as ‘general principles of criminal law’,
section 2(a) of the ICC Act states that applicable law for any South African
court hearing any matter arising under the ICC Act includes ‘conventional
international law, and in particular the Statute’. The implication of this is
that those defences and grounds for liability (such as superior orders,
mistake of fact or law, nullum crimen sine lege, command responsibility,
mental illness, intoxication, self-defence and duress) contained in the
Rome Statute become applicable in South Africa. 29
Of special significance is the non-applicability of a statute of
limitations within South Africa. This reflects the provisions of article 29 of
the Rome Statute. South Africa has realised this provision by effecting an
amendment to section 18 of the Criminal Procedure Act 51 of 1977.
Section 39 of the ICC Act therefore indirectly states that the right to
institute a prosecution for crimes of genocide, war crimes and crimes
against humanity is a right which does not prescribe. 30
3.5.1 Procedure for domestic prosecutions
Section 5 of the Act regulates domestic prosecutions and is a rather
complex process of engagement between a variety of government
departments and officials. Section 5(1) of the ICC Act requires that the
consent of the National Director of Public Prosecutions must be obtained
before any prosecution may be instituted against a person accused of
having committed a crime. The Act further provides in section 5(4) that
after the National Director has consented to a prosecution, an appropriate
High Court must be designated for that purpose. This provision bears
testimony to the importance attached to prosecutions of international
crimes. The designation of such a court must be provided in writing by the
‘Cabinet member responsible for the administration of justice … in
consultation with the Chief Justice of South Africa and after consultation
with the National Director [of Public Prosecutions]’.
In the event that the National Director of Public Prosecutions declines
to prosecute – that is, the South African authorities prove to be unable or
unwilling to prosecute – section 5(5) compels the National Director to
inform the Director-General of Justice and provide full reasons for that
decision. Consonant with the principle of complementarity, the Director-
General is then obliged to forward the decision, together with reasons, to
the Registrar of the ICC in The Hague. 31 An unjustified refusal will result
in international responsibility of South Africa for its failure to comply with
its obligations under the ICC Statute. The ICC then bears the onus of
29 Du Plessis (n 10 above) 15.
30 As above 16.
31 Du Plessis (n 1 above) 200.