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

330 Chapter 14
repeats the hierarchical and unjust structure of the international system. 88
At the centre of the current regime of the court are the UN Security
Council’s referral and deferral powers: article 16 is the ‘negative’
component of the council’s relationship with the court, the ‘positive’ one
being article 13, which allows the council to proactively refer a matter to
the court. The proposed amendment purports to grant the General
Assembly authority to supplant the Security Council when the latter
refuses to be moved by calls to defer investigations before the ICC.
Furthermore, it attempts to establish a secondary responsibility in the
assembly for the maintenance of international peace and security in the
event of Security Council inaction. 89
10 Conclusion
South Africa is a dualist state. Accordingly, an act of transformation of the
international treaty into the domestic system has to be promulgated so that
obligations undertaken could be lawfully be given effect to. South Africa
has successfully achieved this objective and has been confronted with
situations in which its implementing legislation has been put to the test.
These recent events turning on South Africa’s commitment to
international criminal law delineate the two main functions of the ICC
Act: to allow our local courts and police service to co-operate with the ICC
in apprehending suspects indicted by the ICC (such as Al Bashir); and to
ensure we fulfil our treaty obligations domestically to investigate
individuals (for example those named in the Gaza docket) — who are
South African or come within our jurisdiction — suspected of war crimes,
genocide, or crimes against humanity. This second function is strictly in
accordance with the principle of complementarity which obliges member
states to act domestically by investigating and prosecuting these crimes or,
if unwilling or unable to do so, surrendering suspects to The Hague for
prosecution.
Although South Africa is regarded as an excellent example of
commitment to the principles of international human rights law, the recent
confusion surrounding the South African government’s equivocation on
our voluntarily-undertaken commitments calls for a coherent and coordinated
policy on international criminal justice within government. 90
88 The result entrenches the Great Powers exception granted to permanent Security
Council members by giving the council the sole discretion to refer and defer matters to
the court.
89 Gevers (n 67 above).
90 Gevers (n 65 above).