No domestic prosecutions of international crimes have taken place in South Africa. Prior to the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ('the ICC Act'), South Africa had no municipal legislation on the subject of war crimes or crimes against humanity.1 Although customary international law forms part of South African law, a South African court confronted with the prosecution of a person accused of an international crime would have been hard pressed to convict, since the principle of nullem crimen sine lege (no crime without a law) would probably have constituted a bar to any such prosecution.2 The same principle would most likely have also put paid to prosecutions under the Geneva Conventions of 1949. South Africa has not incorporated the Geneva Conventions into municipal law nor, prior to the ICC Act, enacted legislation to punish grave breaches.3
The Implementation of the Rome Statute of the International Criminal Court Act No. 27, 2002.
The ICC Act came into force on 18 July 2002 after promulgation by the President in the Government Gazette.4
The ICC Act takes seriously the 'complementary' obligation on South African courts to domestically investigate and prosecute the ICC offences of crimes against humanity, war crimes and genocide. The preamble, for instance, speaks of South Africa's commitment to bring ".. .persons who commit such atrocities to justice... in a court of law of the Republic Page 188 in terms of its domestic law where possible". And section 3 of the Act defines as one of its objects the enabling, "as far as possible and in accordance with the principle of complementarity..., the national prosecuting authority of the Republic to adjudicate in cases brought against any person accused of having committed a crime in the Republic and beyond the borders of the Republic in certain circumstances". The ICC Act gives effect to the complementarity scheme by creating the structure necessary for national prosecutions under the ICC Statute (the structure is created in terms of Chapter 2 of the Act, entitled 'Jurisdiction of South African Courts and Institution of Prosecutions in South African Courts in Respect of Crimes').
The procedure for the institution of prosecutions in South African courts is set out in section 5 of the Act. This procedure involves different governmental departments and officials. First, the ICC Act requires that the consent of the National Director of Public Prosecutions must be obtained before any prosecution may be instituted against a person accused of having committed a crime (s 5(1 )).5 The National Director must, when reaching a decision about a prosecution, recognise South Africa's obligation in the first instance, under the principle of complementarity in the Rome Statute, to exercise jurisdiction over and to prosecute persons accused of having committed a core crime (s 5(3)).
Given the importance of any such prosecution, it is clear that a specialised court needs to be designated. The Act provides that, after the National Director has consented to a prosecution, an appropriate High Court must be designated for that purpose. Such designation must be provided in writing by the "Cabinet member responsible for the administration of justice., .in consultation with the Chief Justice of South Africa and after consultation with the National Director" (s 5(4)). The expectation under the Act, flowing from South Africa's obligations under the complementarity scheme, is that a prosecution will take place within the Republic. As such, if the National Director declines to prosecute a person under the Act, s/he must provide the Director-General for Justice and Constitutional Development with the full reasons for that decision (s 5(5)). The Director-General is then obliged to forward the decision, together with reasons, to the Registrar of the ICC in The Hague.6
The ICC Act deals specifically with the non-applicability of statutes of limitations. Article 29 of the Rome Statute provides that the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. To comply with this directive, section 39 of the ICC Act points to an amendment to the Criminal Procedure Act,7 effected by way of Schedule 2 to the ICC Act. In terms of that amendment, section 18 of the Criminal Procedure Act (which deals with the prescription of the right to institute prosecutions) now Page 189 includes the right to institute a prosecution for crimes of genocide, war crimes and crimes against humanity as a right that does not lapse.8
A second amendment effected by the ICC Act is to the Military Discipline Supplementary Measures Act 16 of 1999. Schedule 2 of the ICC Act provides that any member of the South African Armed Forces who is subject to the Military Discipline Code, and who commits one of the core crimes, must now be dealt with in accordance with the provisions of the ICC Act (and not the Military Discipline Supplementary Measures Act as in the past).9
Aside from these express amendments, an implied amendment appears to have been effected in relation to Head of State and other official immunity by the ICC Act. The Diplomatic Immunities and Privileges Act 37 of 2001 provides in section 4(1) that "[a] head of state is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as - (a) heads of state enjoy in accordance with the rules of customary international law". Section 4(2) provides that "[a] special envoy or representative from another state, government or organisation is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as - (a) a special envoy or representative enjoys in accordance with the rules of customary international law".
This grant of immunity (for Heads of State and special envoys or representatives) appears to have been supplanted, however, by section 4(2) of the ICC Act. The section provides as follows:
"Despite any other law to the contrary, including customary and conventional international law, the fact that a person -
(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official ... is neither -
(i) a defence to a crime: nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime."
The ICC Act is premised on an understanding that the ICC will in most circumstances have to rely on the intercession of national jurisdictions to gain custody of suspects. As a result Page 190 it envisages two types of arrest: one in terms of an existing warrant issued by the ICC, and another in terms of a warrant issued by the National Director of Prosecutions. In both scenarios the warrant must be in the form and executed in a manner as near as possible to that which exists in respect of warrants of arrest under existing South African law.10
Under section 8 of the ICC Act, when South Africa receives a request from the ICC for the arrest and surrender of a person for whom the Court has issued a warrant of arrest, it must refer the request to the Director-General of Justice and Constitutional Development with the necessary documentation to satisfy a local court that there are sufficient grounds for the surrender of the person to The Hague.11 The Director-General must then forward the request (along with the necessary documentation) to a magistrate, who must endorse the ICC's warrant of arrest for execution in any part of the Republic.12
Section 9 details the second scenario (an arrest in terms of a warrant issued by the National Director of Prosecutions). In this situation the Director-General of Justice and Constitutional Development is mandated to receive a request from the ICC for the provisional arrest of a person who is suspected or accused of having committed a core crime, or has been convicted by the ICC. The Director-General is then obliged to immediately forward the request to the National Director of Public Prosecutions (NDPP), who must then bring an application for a warrant before a magistrate.13 The application must be supported by an affidavit attesting to various factors, for example, that a warrant of arrest or a judgment against the...