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

Implementation of the Rome Statute in South Africa 317
Section 9 concerns an arrest in terms of a warrant issued by the
National Director of Public Prosecutions. According to section 9(1) the
Director-General of Justice is mandated to receive a request from the ICC
for the provisional arrest of a person who is suspected or accused of having
committed a core crime, or has been convicted by the ICC. The Director-
General is then obliged to immediately forward the request to the National
Director of Public Prosecutions, who must then apply for the warrant
before a magistrate. 41
A request from the ICC for the arrest and surrender of a person is to be
referred to the Director-General of the Department of Justice. The
Director-General shall immediately forward the request to a magistrate
who must endorse the warrant of arrest for execution in any part of South
Africa. Section 10(1) of the ICC Act then stipulates that after being
arrested, the arrestee is to be brought ‘before a magistrate in whose area of
jurisdiction he or she has been arrested or detained, within 48 hours after
that person’s arrest or on the date specified in the warrant for his or her
further detention’. The South African authorities after that become
engaged in what is known as the ‘surrender’ (‘delivery’) of an arrestee to
the ICC. 42
According to section 10(1)(a) to (c) of the ICC Act, the magistrate
holding the inquiry is to consider the evidence adduced and must establish
three issues. 43 The first issue is whether the warrant applies to the person
in question; second, whether the person has been arrested in accordance
with the procedures laid down by domestic law, and third, whether the
rights of the person have been respected. If the magistrate is satisfied that
the three requirements have been complied with, he or she must issue an
order committing the person to prison pending his or her surrender to the
ICC (‘a committal order’). It is important to note that section 10(5) of the
ICC Act provides that the magistrate does not issue an order of surrender
but rather an order of committal to prison. 44
4.2 Surrender
There is a qualitative difference in nature between ‘surrender’ and
‘extradition’. Article 102 of the Rome Statute provides that ‘surrender’
means the delivering up of a person by a state to the Court, while
‘extradition’ means the delivering up of a person by one statue to another
as provided by treaty, convention or national legislation.
41 Du Plessis (n 1 above) 201.
42 As above, 202.
43 Katz (n 4 above) 28.
44 As above.