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

318 Chapter 14
When it comes to a request by the ICC for the surrender of a person,
the process set out in the ICC Act is similar to that contained in the
Extradition Act 67 of 1962 with a number of significant differences with a
view towards streamlining the process. The rationale for this streamlined
process is to facilitate the surrender of a person in a far quicker and easier
way than compared to the extradition of a person to a foreign state. While
the intention may have been admirable, Katz criticises the surrender
provisions in the ICC Act and submits that it may not have been successful
after all 45 based inter alia on the fact that there is no provision for any
competent authority, whether a court or the executive branch of
government, to issue an order of surrender. 46
Katz reveals that upon a closer analysis of the arrest and surrender
provisions, it seems that the scheme of arrest and surrender to the ICC
provided for in the South African legislation to give effect to the Statute is
somewhat defective. He goes on to state that the situation is invariably as
a result of the attempt to reflect the compromise on the issue of extradition
and as a result South Africa may not be able to comply with its obligations
to assist the ICC in securing the attendance of a person before it. 47
According to Katz, the provision in the ICC Act dealing with the removal
of persons – section 11(1) – refers to any person in respect of whom an
order to be surrendered has been given under section 10(5). Section 10(5)
does not refer to ‘an order to be surrendered’. No other section refers to an
order to be surrendered. Accordingly, the ICC Act does not properly, or at
all, provide South African authorities with the necessary power to respond
to a request for surrender by the ICC. This anomaly is explained by the
attempt to utilise only parts of the extradition process without a full
consideration of the effect of leaving out the other parts and a failure to
appreciate that there is a fundamental difference between surrender and
extradition.
In the first place, no mention is made of the double criminality rule
which is central to extradition procedures; and of possibly even more
importance is the fact that there is no requirement in the ICC Act that a
prima facie case be shown against the suspect. 48 The magistrate is only
required to be satisfied that the person may be surrendered to the court: (a)
for prosecution for the alleged crime; (b) for the imposition of a sentence
by the court for the crime in respect of which the person has been
convicted; or (c) to serve a sentence already imposed by the court. 49 In
addition, the magistrate must find that the ICC has a genuine interest in the
surrender of the arrestee. However, there is little indication in the Act as to
what level of proof must be proffered by the prosecution to prove these
45 As above.
46 As above 25.
47 As above 28 - 29.
48 Du Plessis (n 10 above) 9.
49 Du Plessis (n 1 above) 202.