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

Implementation of the Rome Statute in South Africa 315
deciding whether to prosecute the suspect or not. The ICC will invariably
proceed if it concludes that South Africa’s decision not to prosecute was
motivated purely by a desire to shield the individual concerned from
prosecution. 32
It is envisaged that the usual trial procedure for a criminal trial in the
High Court will be followed and in accordance with section 4(1) of the ICC
Act the High Court is permitted to impose any competent sentence which
it would otherwise have been entitled to impose in terms of its domestic
criminal sentencing jurisdiction, including life imprisonment; 33
imprisonment; a fine; reparations (monetary compensation); 34 and
correctional supervision. 35
Notwithstanding the broad discretion conferred on domestic courts to
investigate and prosecute international crimes, section 2 of the ICC Act
constrains these powers by requiring that a South African court shall apply
the Constitution and the law when prosecuting a person allegedly
responsible for a core crime. Moreover, the Act provides in section 2(a)
that applicable law for any South African court hearing any matter arising
under the Act includes ‘conventional international law; and in particular
the Rome Statute’. Therefore, the general principles of international
criminal law will invariably find application before a South African court.
3.5.2 Prosecutions before the ICC
In pursuit of co-operation between the ICC and the South African
government, the ICC Act provides an elaborate procedure to ensure that
perpetrators of international crimes are prosecuted. In order to invoke the
procedures for a prosecution before the ICC, it is imperative that
suspected/accused persons are brought before the ICC. Article 89 of the
Rome Statute thus provides that:
32 See art 17(2)(a) of the Rome Statute.
33
The appropriateness of a sentence of life imprisonment is mediated by the provisions of
art 77(1)(b) of the Rome Statute which provides that life imprisonment is reserved for
when it is ‘justified by the extreme gravity of the crime and the individual
circumstances of the convicted person’. Therefore, in the South African context, life
imprisonment is deemed to be a competent sentence in terms of sec 4(1) of the ICC Act
although the Act does not set out the circumstances when such a sentence will be
appropriate.
34 According to art 75(2) of the Rome Statute, the ICC is empowered to address the issue
of reparations to victims, and may ‘make an order directly against any convicted
person’ specifying reparations. According to sec 25(2) and (3) of the ICC Act, this order
of a fine or reparations has the effect of a civil judgment and therefore must be
registered with a court having jurisdiction within South Africa. Sec 26 goes on to
provide that the Director-General of Justice and Constitutional Development thereafter
has the responsibility of paying over to the ICC any amount realized in the execution of
the sentence or the order, and from that must be subtracted any expenses incurred by
the Republic in executing the order.
35 Du Plessis (n 1 above) 200.