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324 Chapter 14 the Rome Statute to the effect that the provision allowing for the UN Security Council to delay proceedings before the court be amended to allow for the UN General Assembly to do so in the event that the Council fails to act. 9.1 South Africa’s response to the article 98 Bilateral Immunity Agreements imposed by the United States of America On 12 July 2002, the UN Security Council unanimously adopted Resolution 1422. This resolution granted immunity from prosecution by the ICC to UN peacekeeping personnel from countries that were not party to the ICC. The Resolution was passed at the insistence of the United States, which threatened to veto the renewal of all UN peacekeeping missions unless its citizens were shielded from prosecution by the ICC. In response to the Resolution, South Africa joined with Canada, Brazil, and New Zealand in submitting a letter of opposition to the Resolution alleging that the Council’s pursuit of the matter, despite the clear opposition of the international community, was ‘damaging international efforts to combat impunity, the system of international justice, and the collective ability to use these systems in the pursuit of international peace and security’. South Africa’s stance was a challenge to the legitimacy of the Council’s arrogating to itself the right to interpret and change the meaning of treaties. This Resolution was valid for a period of one year and it was subsequently renewed for a further year by Resolution 1487. In his capacity as South Africa’s Ambassador to the UN, Dumisani Kumalo condemned the renewal of the Resolution by stating that the adoption of Resolution 1487 cast a shadow on the integrity of the ICC Statute, the Criminal Court, and the application of international law’. 69 In the context of Resolutions 1422 and 1487, the United States started systematically adopting Bilaterial Immunity Agreements (otherwise known as article 98 agreements) with state parties to the ICC. The purpose of the Bilateral Immunity Agreements is to prevent the states concerned from transferring through whatever procedure, without the consent of the United States, any ‘current or former [g]overnment officials, employers (including contractors), or military personnel or nationals’ of the United States either to the ICC or to a third state or entity with the purpose of eventual transfer to the ICC. Although pressured to do so, South Africa refused to sign an article 98 agreement. The United States set a deadline of 31 June 2003 for the conclusion of the agreement and simultaneously threatened that should South Africa refuse to sign the agreement, military 69 See M du Plessis ‘South Africa’s response to America’s hostility towards the International Criminal Court’ (2005) 30 South African Yearbook of International Law 112.
Implementation of the Rome Statute in South Africa 325 aid to the value of 7.2 million US dollars provided by the United States would be suspended. South Africa refused to sign and was accordingly black-listed by the United States on 1 July 2003. The official government statement for the deliberate refusal to sign the agreement was South Africa’s ‘commitment to the humanitarian objectives of the ICC and the country’s international obligations’. South Africa’s steadfast position signified a victory for South Africa’s adherence to the principles of international criminal law and it is such conduct which set South Africa apart as a leader in the quest for ending impunity for crimes against humanity, war crimes and genocide. 9.2 Zimbabwean officials accused of committing crimes against humanity South Africa’s former respected position came under scrutiny in 2008 when a dossier was submitted to the National Prosecuting Authority concerning South Africa’s obligations under the ICC Act. 70 The substance of this dossier concerned 18 Zimbabwean human rights violators who had allegedly committed crimes against humanity during the run-up to the 2008 elections. The rationale for the dossier was to urge the National Prosecuting Authority to institute prosecutions where they had previously refused on account of a decision taken by the police not to investigate the allegations. The Southern African Litigation Centre and the Zimbabwe Exiles Forum appealed the decision and sought an order setting aside the decision not to prosecute these perpetrators and, moreover, to have these human rights violators arrested in the event they travel to South Africa. The ostensible motive behind the submission of the dossier was to prevent South Africa from becoming a haven for those who commit crimes against humanity. This case is ongoing and has not yet resulted in litigation or prosecutions. 71 9.3 South Africa’s reaction to the international arrest warrant issued against Sudanese President Omar Al Bashir and South Africa’s legal obligations if Omar Al Bashir were to arrive in South Africa In 2009 an arrest warrant against Sudanese President Omar Al Bashir was issued after the UN Security Council decided to refer the crimes committed in Sudan to the ICC for investigation and possible prosecution. Al Bashir stands accused of crimes against humanity and war crimes committed in the Darfur conflict by government officers and soldiers. However, at its 70 The dossier was composed of a legal opinion compiled by Advocates Wim Trengove, Gilbert Marcus and Max du Plessis. 71 Du Plessis (n 68 above) 442.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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The trial of Hissène Habré in Sen
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CHAPTER 9 1 Introduction PROSECUTIN
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2 Genesis of the conflict Prosecuti
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Prosecuting international crimes by
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CHAPTER 10 1 Introduction GENOCIDE
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Genocide as prosecuted by the ICTR
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8 Reparations Genocide as prosecute
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234 Chapter 11 losses in excess of
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236 Chapter 11 piracy’. 14 In add
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238 Chapter 11 aircraft in accordan
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240 Chapter 11 and it is easy to av
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242 Chapter 11 phone. They took ove
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244 Chapter 11 3.3 Capacity problem
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246 Chapter 11 support us. They did
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CHAPTER 12 Benson 1 Introduction PO
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Positive complementarity and the fi
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Page 285 and 286: Positive complementarity and the fi
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Page 290 and 291: 278 Chapter 13 international crimin
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Page 296 and 297: 284 Chapter 13 passed domesticating
Page 298 and 299: 286 Chapter 13 crimes within their
Page 300 and 301: 288 Chapter 13 offences. Procedural
Page 302 and 303: 290 Chapter 13 Constitution, 62 thi
Page 304 and 305: 292 Chapter 13 4.1.3 The law regula
Page 306 and 307: 294 Chapter 13 either reciprocal or
Page 308 and 309: 296 Chapter 13 committed to fightin
Page 310 and 311: 298 Chapter 13 The procedure for th
Page 312 and 313: 300 Chapter 13 trial. While the Rom
Page 314 and 315: 302 Chapter 13 Having draft legisla
Page 317 and 318: CHAPTER 14 Lee 1 Introduction IMPLE
Page 319 and 320: Implementation of the Rome Statute
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Page 343 and 344: Books SELECTED BIBLIOGRAPHY Allen,
Page 345 and 346: Selected bibliography 333 Neier A (
Page 347 and 348: Selected bibliography 335 Chitiyo,
Page 349 and 350: Selected bibliography 337 Jalloh, C
Page 351 and 352: Selected bibliography 339 Roht-Arri
Page 353 and 354: Selected bibliography 341 Report on
Page 355 and 356: Table of cases 343 Right of Passage
Page 357 and 358: Table of cases 345 Prosecutor v Vas
Page 359 and 360: Table of cases 347 Muhimana v Prose
Page 361 and 362: Table of cases 349 Prosecutor v Rut
Page 363 and 364: Table of cases 351 and the Governme
Page 365 and 366: Table of cases 353 Prosecutor v Ses
Page 367 and 368: Table of cases 355 GAOR, 45th Sess.
Page 369: Table of cases 357 R v Bow Street M
Page 372 and 373: 360 Subject index Domestication ...
Page 374: 362 Subject index S Selective justi
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