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

328 Chapter 14
Network 79 used South Africa’s ICC Act to present a 3500-page docket to
the National Prosecuting Authority and the Hawks (South Africa’s new
Priority Crimes Unit). The dossier alleges that certain individuals,
including members of the Israeli army who fought in Operation Cast Lead,
are guilty of international crimes during the Gaza offensive and it thus
advocates for an investigation in South Africa of foreign nationals and
South Africans allegedly implicated in war crimes during the operation. In
parallel with their South African request, the complainants handed the
dossier over to the ICC’s prosecutor in early September. What is
particularly interesting about the request for an investigation into the
conduct of the Israeli soldiers is that Israel is not a member State of the
ICC, 80 and yet the Israeli soldiers are acutely aware of the legal
consequences which are likely to ensue for their conduct which amounts
to crimes against humanity and war crimes. They have been fortunate thus
far not have been subjected to these consequences. 81
9.5 Proposed amendment to article 16 (deferral of
investigation or prosecution) of the Rome Statute
Article 121(1) of the Rome Statute reads:
After the expiry of seven years from the entry into force of this Statute, any
State Party may propose amendments thereto. The text of any proposed
amendment shall be submitted to the Secretary-General of the United
Nations, who shall promptly circulate it to all States Parties.
South Africa has taken cognisance of article 12 and made an ambitious
proposal concerning amendment to the ICC’s deferral regime contained in
article 16. 82 Article 16 provides:
No investigation or prosecution may be commenced or proceeded with under
this Statute for a period of 12 months after the Security Council, in a
resolution adopted under Chapter VII of the Charter of the United Nations,
has requested the Court to that effect; that request may be renewed by the
Council under the same conditions.
To put this into context, article 16 was designed to cover those situations
where the Security Council, in pursuit of the restoration of international
79 These two organisations instructed a team of leading international lawyers, headed by
Professor John Dugard, to settle the docket.
80 UN Secretary-General Ban Ki-Moon has lent his full support to the prosecution of
those who have committed violations of international human rights law in Gaza. See
Siun, Gaza Update: 300 Human Rights Groups Request War Crimes Prosecution of
Israel, 20 January 2009 http://cebo.org/labels/UNWRA.html (accessed 7 February
2010).
81 Du Plessis (n 23 above).
82 The amendment was tabled by South Africa for consideration at the 8 th Assembly of
States Parties in The Hague in November 2009 and has also been placed on the agenda
for the 9 th Assembly of States Parties in New York to be held in 2010.