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

316 Chapter 14
The Court may transmit a request for the arrest and surrender of a person …
to any state on the territory of which that person may be found and shall
request for the cooperation of that state in the arrest and surrender of such a
person.
4 Arrest, surrender, extradition and transfer
Trials in absentia are not permitted by the Rome Statute so the ICC is
dependent on the co-operation and assistance of national authorities to
secure the attendance of accused individuals. Article 59 of the Rome
Statute deals with ‘arrest’ and ‘surrender’ proceedings in the custodial
state. 36 Significantly, upon ratification of the Rome Statute, states accept
that there are no grounds for refusing ICC requests for arrest and
surrender. However, should a conflict arise between South Africa and the
ICC regarding arrest and surrender, then under section 10(2) of the ICC
Act the magistrate may at any time during the inquiry ‘postpone that
inquiry for purposes of consultation between the relevant authorities of the
Republic and the Court as contemplated in Article 97 of the Statute’.
4.1 Arrest
The ICC Act envisages two types of arrest: one in terms of an existing
warrant issued by the ICC, and another in terms of a warrant issued by
South Africa’s National Director of Public Prosecutions. In both scenarios
the warrant (whether endorsed or issued) must be in the form and executed
in a manner that is compatible with that which exists in respect of warrants
of arrest under existing South African law. 37
With respect to an arrest in terms of a warrant issued by the ICC, in
order to obtain such a warrant and surrender from the ICC the Prosecutor
would have to have convinced a Pre-Trial Chamber of the court (consisting
of three judges) that there were ‘reasonable grounds to believe’ the suspect
had committed a core crime. 38 Thereafter, in terms of section 8 of the ICC
Act, when South Africa receives a request from the ICC for the arrest and
surrender of a person for whom the ICC has issued a warrant of arrest, it
must refer the request to the Director-General of Justice and Constitutional
Development with the necessary documentation to satisfy a local court
that there are sufficient grounds for the surrender of the person to The
Hague. 39 This request must be submitted along with the ‘material
supporting the request’ to a magistrate who must endorse the ICC’s
warrant of arrest for execution in any part of the Republic (section 8(2)). 40
36
Katz (n 4 above) 27- 28. Surrender is the term used in the ICC Act.
37 Du Plessis (n 1 above) 201.
38 Du Plessis (n 10 above) 9.
39
Sec 8(1). See Du Plessis (n 1 above) 201.
40 See art 89 of the Rome Statute. See Du Plessis (n 1 above) 201.