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

Implementation of the Rome Statute in South Africa 323
accordingly provides that such regulations would be included as part of the
Act. 63 To date, the Minister has only made regulations providing for such
aspects as the obtaining of evidence; restraint orders; sentences;
compensatory orders; and confiscation orders. 64
9 Recent developments illustrating the effect of
implementation of the Rome Statute in South
Africa
The adoption of a progressive implementing Act on the ICC has ensured
that South Africa plays a leading role on the continent and is at the cutting
edge of developments concerning the interpretation, implementation and
enforcement of the Rome Statute. 65 This momentum and South Africa’s
good repute have unfortunately suffered a decline in recent months due to
South Africa’s apparent ‘amnesia’ concerning the obligations it had
voluntarily undertaken.
Du Plessis prophetically stated in 2004 that the true test for the ICC
Act will come when an international criminal makes his or her appearance
on our territory. 66 Notwithstanding the perception that South Africa is
committed to the fight against impunity, South Africa has recently found
itself mired in controversy concerning its external position on the ICC
since it has been criticised for sacrificing the ideals of international justice
on the altar of political expediency. 67 In particular, South Africa’s recent
position on the ICC has not been a model of clarity. 68 Events turning on
fundamental principles of international criminal law whereupon South
Africa was expected to take decisive action can be classified under the
following broad discussion issues: South Africa’s response to the article 98
Bilateral Immunity Agreements imposed by the United States of America;
attempts to arrest ZANU-PF officials who had been accused of
committing crimes against humanity in Zimbabwe and who were
subsequently on South African territory; South Africa’s [ambiguous]
position with regards to the international arrest warrant issued by the ICC
for Sudanese President Omar Al Bashir; the ‘Gaza docket’; and South
Africa’s controversial proposal concerning an amendment to article 16 of
63 Du Plessis (n 1 above) 198 at fn 138.
64 Regulations made under sec 38 of the Implementation of the Rome Statute of the
International Criminal Court Act Act 27 of 2002, published in Government Notice R
1089 of 16 August 2002 (Government Gazette 23761).
65 C Gevers ‘Gaza docket: SA must tighten policies on international criminal justice’
Business Day 20 August 2009 http://www.businessday.co.za/articles/
Content.aspx?id=79073 (accessed 18 December 2009).
66 Du Plessis (n 7 above) 15.
67 C Gevers ‘SA’s bold proposal shows up the flaws in the Rome compromise’ Business
Day 29 December 2009 http://www.businessday.co.za/articles/
Content.aspx?id=90453 (accessed 4 January 2010).
68 M du Plessis ‘Recent cases and developments: South Africa and the International
Criminal Court’ 2009 (3) South African Journal of Criminal Justice 443.