The incorporation of the Rome Statute of the ICC into national law in South Africa

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The Rome Statute of the International Criminal Court is a multilateral international agreementor treaty. All states have the right to become parties to it. When a state does ratify or accede to it, it incurs international obligations to the other State Parties to the agreement. State Parties must ensure that their domestic laws enable them to comply with its international obligations. Failure adequately to provide for the international obligations is not only undesirable internationally but also domestically. The South African Parliament has incorporated the Rome Statute into national (municipal) law by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. This is a commendable step in ensuring that its international obligations are met. Unfortunately, it appears that the scheme of arrest and surrender to the ICC provided for in the South African legislation to give effect to the Rome Statute is somewhat defective. There is no provision for any competent authority, whether a court or the executive branch of government, to issue an order of surrender. This defect should be remedied as soon as possible. Source - http://www.iss.co.za/pubs/ASR/12No4/F3.pdf

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The incorporation of the Rome Statute of the ICC into national law in South Africa

  1. 1. FEATURE AN ACT OF TRANSFORMATION The incorporation of the Rome Statute of the ICC into national law in South Africa ANTON KATZ The Rome Statute of the International Criminal Court is a multilateral international agreement or treaty. All states have the right to become parties to it. When a state does ratify or accede to it, it incurs international obligations to the other State Parties to the agreement. State Parties must ensure that their domestic laws enable them to comply with its international obligations. Failure adequately to provide for the international obligations is not only undesirable interna- tionally but also domestically. The South African Parliament has incorporated the Rome Statute into national (municipal) law by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. This is a commendable step in ensuring that its international obligations are met. Unfortunately, it appears that the scheme of arrest and sur- render to the ICC provided for in the South African legislation to give effect to the Rome Statute is somewhat defective. There is no provision for any competent authority, whether a court or the executive branch of government, to issue an order of surrender. This defect should be remedied as soon as possible.Introduction Statute is to put in place effective arrange- ments to prevent impunity for the crimes overThe International Criminal Court (ICC) came which it will have jurisdiction. The ICC wasinto operation on 1 July 2003. It has been established to ensure that individuals subjectwidely supported throughout the world and to the jurisdiction of a State party to the Romemore particularly in Africa and the Southern Statute who are suspected of committing theAfrican region. This reflects the fact that inter- crimes of genocide, war crimes and crimesnational, regional and national communities against humanity are subjected to properare of the view that individuals who commit investigation and, if a sufficient case exists, arethe crimes of genocide, war crimes and crimes prosecuted, and, if found guilty are duly pun-against humanity should be prosecuted for ished for their conduct. An important elementtheir conduct, and impunity for those crimes in the scheme of the ICC is that if nationalshould be avoided. criminal justice processes are adequate to The ICC has been set up through a multi- ensure investigation, prosecution and punish-lateral treaty known as the Rome Statute of ment in respect of the relevant crimes, theythe International Criminal Court (“the Rome should be used. This notion, called ‘comple-Statute”). The object and purpose of the Rome mentarity’, is expressed in the preamble and inANTON KATZ is a member of the Bar in Cape Town and New York, and is a practising advocate at the Cape Bar.
  2. 2. 26 African Security Review 12(4) • 2003Articles 1 and 17 of the Rome Statute. The transformation once the State becomes apreamble states: party to the international agreement or treaty. ‘the International Criminal Court estab- Dualists, the second school, on the other lished under this Statute shall be comple- hand view international law and municipal mentary to national criminal jurisdictions’ law as completely different systems of law.If there is a risk that a suspect will avoid inves- This has the result that domestic courts maytigation and prosecution, then the ICC is cal- only apply international law, and specificallyculated, in principle, to fill the gap. The main treaties, if, and only if, those treaties havepurpose is not international prosecution as been transformed into municipal law by legis-such. It is the prevention of impunity. States lation. The classic formulation of this positionare given the first opportunity to exercise is reflected in the dictum by the Appellatecriminal jurisdiction. Individuals who are Division of the Supreme Court in Southguilty of the serious crimes, which are subject Africa in Pan American World Airwaysto the jurisdiction of the ICC, must take Incorporated v SA Fire and Accident Fireresponsibility for their conduct and not be Insurance Company Ltd1, where CJ Steyn CJshielded by states that are unwilling or unable stated:to investigate and prosecute them. ‘…in this country the conclusion of a The Rome Statute is a multilateral treaty treaty, convention or agreement by theand like any international agreement must be South African government with anyconsidered in both international law and in other government is an executive andthe domestic law of the respective State Parties not a legislative act. As a general rule,to the treaty. Thus, for some states, ratification the provisions of an international instru-of, or accession to, the Rome Statute may well ment so concluded, are not embodied incause them to become bound on the interna- our municipal law, except by legislativetional plane and thus incur international obli- process…In the absence of any enact-gations vis-à-vis other State parties to the ment giving [its] relevant provisions theRome Statute whilst at the same time no force of law, [it] cannot affect the rightdomestic legislation is in place giving force of the subject.’and effect to the international obligations so Many African States follow a similar positionundertaken. State parties may thus find them- to that of South Africa.2 Most, although notselves willing but not able to satisfy their all, Anglophone states follow the dualistinternational obligations. approach. A few do not. Thus for example, Article 144 of the Namibian Constitution of 1990 provides that “Unless otherwise provid-International law applied locally ed by this Constitution or Act of Parliament,There are two main approaches to the subject the general rules of public international lawof the relationship between international law and international agreements binding uponin the form of treaties and international obli- Namibia under this Constitution shall formgations incurred in respect of such agreements part of the law of Namibia.” Moston the one hand and municipal law on the Francophone States follow an approach ofother. The first, the monist school maintains direct incorporation and there is thus no needthat international and municipal law are to be for any act of transformation into municipalregarded as manifestations of a single concep- law.tion of law. Monists thus argue that municipal For States that follow the dualist positioncourts are obliged to apply rules of interna- becoming a party to the Rome Statutetional law directly without the need for any requires an act of transformation so that obli-act of transformation of the provisions of the gations undertaken may lawfully be giveninternational agreement by the legislature into effect to. Thus, for example once South Africanational (municipal) law. For them, interna- had ratified the Rome Statute, it, being a dual-tional law is immediately incorporated into ist State, was required to enact legislationmunicipal law without any act of adoption or bringing its provisions into its municipal law.
  3. 3. Katz 27Until it had done so, courts in South Africa crimes under the common law and were notcould have no regard to the provisions of the statutory crimes. It was therefore necessary forRome Statute and the South African authori- Parliament to enact a law, which made suchties would not have been entitled to act in conduct a crime under the laws of Southterms of its provisions. Thus unless crimes Africa and to specify the conduct that consti-against humanity, war crimes and genocide tuted the crimes. This was done by causing thewere crimes under South African law prior to three crimes to be defined in the definitionincorporation of the Rome Statute a person section in the Implementation Act with refer-could not lawfully be charged and convicted ence to the definitions contained in the Romeof any of these crimes in a South African Statute. Section 1 of the Implementation ActCourt. Similarly, prior to incorporation, a defines a “crime” to mean the crime of geno-request by the ICC for the surrender or trans- cide, crimes against humanity and war crimes.fer of a person to it could not be acted upon A “war crime” is defined to mean any conductin South Africa without some other source of referred to in Part 3 of the Rome Statute. Thepower to do so.3 introduction of these most serious crimes onto the law books in South Africa is to be welcomed. Prosecutors and courts in SouthSouth African implementation Africa are now in a position to investigate,On 18 July 2002, some 17 days after the Rome prosecute, try and sentence those personsStatute entered into force and the existence of guilty of the appalling conduct that gives risethe ICC became a reality, the South African to these crimes.Parliament passed the Implementation of the It appears, prima facie, that the essential andRome Statute of the International Criminal relevant elements of the Rome Statute and theCourt Act 27 of 2002. (“The Implementation ICC have been incorporated into SouthAct”).4 The Implementation Act was adopted African law. South Africa should thus be in awith the object of creating a framework to give position to comply with its international obli-effect to the provisions of the Rome Statute in gations in respect of the ICC.the law of South Africa. South Africa, having However, closer scrutiny reveals that therelodged its instrument of ratification and the may be difficulties incorporating provisionsRome Statute having coming into force, concerning requests by the ICC for assistanceincurred international obligations in respect and co-operation. Chapter 4 of the Act is head-of the investigation and prosecution of crimes ed ‘Co-operation With and Assistance to Courtagainst humanity, war crimes and genocide In or Outside South Africa’. It consists of sec-and to assist the ICC whenever necessary. tions 8 to 32, which are divided into two parts. Appropriately, the entire Rome Statute is Part 1 (sections 8 to 13) deals with the arrest ofattached to the Implementation Act as a sched- persons and their surrender to the ICC whileule and “Rules” are defined to mean the Rules part 2 (sections 14 to 32) deals with judicialof Procedure and Evidence referred to in Article assistance to the ICC. Part 2 is primarily con-51 of the Rome Statute. This allows South cerned with assistance in the areas of obtainingAfrican Courts to have regard to the relevant of evidence, examination of witnesses, searchessubstantive and procedural provisions. and seizure and the registration of restraint orders in respect of assets and registration finesCriminalisation of the most serious crimes or compensatory orders. It is part 1, concerningIn South Africa, prior to the enactment of the the surrender or transfer of a person to theImplementation Act, conduct constituting the ICC, which may give rise to difficulties.crimes of genocide, crimes against humanityand war crimes may have been tried and pun- Extradition, transfer or surrenderished as ordinary crimes such as murder, rape The ICC will obviously have to rely on theand robbery. However the specific crimes national authorities of the State Parties to thementioned may not have been tried in the Rome Statute to secure the attendance ofCourts of South Africa because they were not accused individuals. Trials in abstentia are not
  4. 4. 28 African Security Review 12(4) • 2003permitted by the ICC Statute.5 For the ICC to The process of dealing with requests by thehave any meaningful effect, adequate proce- ICC for the surrender of a person set out indures must be in place to bring guilty persons the Implementation Act is similar, but notbefore the ICC. Because of the principle of identical, to the extradition process set out incomplementarity, the issue of the arrest and the Extradition Act. The surrender provisionssurrender of a person found, for example in the do however have significant differences fromterritory of South Africa, only arises in the those relating to extradition. This is the resultevent of South Africa being either unwilling or of an attempt by Parliament to streamline theunable to investigate and prosecute the person. process and thus make it quicker and easier toArticle 59 of the Rome Statute deals with arrest surrender a person to the ICC compared toand what is termed “surrender” proceedings in that of extradition to a foreign state. An exam-the custodial State. It is should be mentioned ination of the surrender provisions in thethat during the negotiations leading up to the Implementation Act indicates that theadoption of the Rome Statute, three different attempt may not have been successful.terms were considered for the act of delivery ofa person to the ICC. Extradition,6 the tradi- Arrest and surrender provisionstional method of securing the presence of fugi- A request from the ICC for the arrest and sur-tives to stand trial or serve a sentence was not render of a person is to be referred to the direc-acceptable to certain States because of consti- tor general of the Department of Justice. Thetutional restrictions on the extradition of director general shall immediately forward thenationals.7 The concept of transfer, where the request to a magistrate who must endorse theperson sought is merely arrested and sent to warrant of arrest for execution in any part ofthe ICC was rejected because the usual safe- South Africa. The endorsement of the warrantguards contained in the extradition process of arrest does not appear to be the issue of anconcerning the curtailment of liberty were order of surrender to the ICC. This is con-absent.8 As a compromise the term surrender firmed by the existence of other provisions ofwas adopted in the Rome Statute.9 This com- the Implementation Act because there are fur-promise has unfortunately found its way into ther steps necessary after such endorsement.the Implementation Act. The next step provided for is a hearing before a In South Africa requests by foreign states magistrate, just like in the case of extradition.for the extradition of a person are dealt with The hearing is ‘with a view to the surrender ofby the various authorities in terms of the pro- that person’.11 The magistrate holding thevisions of the Extradition Act 67 of 1962 (“the inquiry is to consider the evidence adducedExtradition Act”). The process essentially con- and must establish three issues.sists of the minister of justice receiving a The first issue is whether the warrant applies torequest and determining whether the extradi- the person in question; second, whether thetion process should proceed. If the process person has been arrested in accordance withdoes continue a hearing is held before a mag- the procedures laid down by domestic law, andistrate’s court. The court only determines third, whether the rights of the person havewhether the person is extraditable. It does not been respected. If the magistrate is satisfieddecide on the issue of extradition itself. A that the three requirements have been com-negative finding on this issue is final whereas plied with he or she must issue an order com-in the event of a positive finding the executive mitting the person to prison pending his or herbranch of government, in the form of the surrender to the ICC. (“a committal order”) ItMinister of Justice, is then required finally to is important to note that section 10(5) of thedecide whether an extradition (or surrender) Implementation Act provides that the magis-order should be made.10 The Extradition Act trate does not issue an order of surrender butmakes it clear that it is the minister, and only rather an order of committal to prison.the minister, who has been given the power to The provision in the Implementation Actissue an order of surrender in the context of a dealing with the removal of persons, sectionrequest for extradition. 11(1), refers to any person in respect of whom
  5. 5. Katz 29an order to be surrendered has been given off if they have clever lawyers. Other than theunder section 10 (5). Section 10 (5) does not guilty, the only beneficiaries of these technicalrefer to “an order to be surrendered.” No hitches are the lawyers who may are paidother section refers to an order to be surren- handsomely to advance the technical points.dered. Thus it appears that the scheme of It is imperative that these issues be consideredarrest and surrender to the ICC provided for and, where necessary, legislation must bein the South African legislation to give effect enacted and amended if appropriate.to the Rome Statute is somewhat defective.There is no provision for any competentauthority, whether a court or the executive Notesbranch of government, to issue an order of 1. 1965 (3) SA 150 (A) at 161 C – D; The modernsurrender. Accordingly, the Implementation position is similar and is reflected in section 231(4) of the Constitution of the Republic ofAct does not properly, or at all, provide the South Africa Act 108 of 1996.South African authorities with the necessary 2. See T Maluwa ‘The incorporation of internation-power to respond to a request for surrender by al law and its interpretational role in Africa: anthe ICC. This anomaly is explained by the exploratory survey’ (1998) 23 South Africanattempt to utilize only parts of the extradition Yearbook of International Law 45. 3. There is no constitutional or legislative provisionprocess without a full consideration of the which empowers the authorities in South Africaeffect of leaving out the other parts. This is to request extradition. The Extradition Act 67 ofprobably as a result of the attempt to reflect 1962 provides only for requests to South Africa.the compromise on the issue of extradition in The ICC is not mentioned at all in the Extradition Act. In most States the exercise of anySouth African law. Because of this, South power by the executive authorities must be madeAfrica may not be able to comply with its in terms of a power granted by the Constitutionobligations to assist the ICC in securing the or legislation. Responses by the South Africanattendance of a person before it. This anomaly authorities to requests by the ICC must be basedshould be corrected as soon as possible. on some constitutional or legislative authority. 4. South Africa had lodged its instrument of ratifica- tion on 10 November 2000. See Max du Plessis ‘Bringing the International Criminal Court home – theConclusion implementation of the Rome Statute of the InternationalThe importance of preventing persons who Criminal Court Act 2002’, 16 South African Journal of Criminal Justice’ (2003) 1.are guilty of the most serious crimes obtaining 5. Article 63 of the ICC Statute provides that theimpunity cannot be denied. States are to be accused shall be present during the trial.commended for having enthusiastically 6. The process of extradition is a bilateral eventembraced the concept of international justice between two sovereign states. One sovereign statefor the most serious crimes. Good intentions surrenders an individual situated in its territory in response to a request for extradition by anotherand political will are however not sufficient. sovereign state. The purpose of surrender is toThere must be precision and care in effecting ensure that the sought-after individual (fugitive)the appropriate tools to give effect to those stands trial or serves a sentence in the requestingintentions. States parties to the Rome Statute state. Extradition is the surrender by one state, at the request of another state, of a fugitive who isof the International Criminal Court, which either accused or convicted of a crime by theadopt a dualist approach to international law requesting state.in the form of treaties, must take whatever leg- 7. States with a civil law tradition (such as Germany,islative steps are required to bring the provi- France, Spain and Italy) as opposed to a commonsions of the Rome Statute into municipal law. law tradition do not as a rule ever extradite their own citizens.However, in doing so, care must be taken that 8. Indeed Justice Goldstone, writing for the entiresuch incorporation is done properly. It is of Constitutional Court in South Africa, stated inlittle assistance to humankind for states to pay Geuking v President of Republic of South Africa 2003lip service to global ideals by becoming parties (3) SA 34 (CC) that: “Extraditing a person, espe- cially a citizen, constitutes an invasion of funda-to international treaties and then being unable mental human rights. The person will usually beto give effect to their provisions because of subject to an arrest and detention, with or withouttechnical reasons. This allows the guilty to get bail, pending a decision on the request from the
  6. 6. 30 African Security Review 12(4) • 2003 foreign State. If surrender is ordered, the person 10. Section 11 of the Extradition Act. In certain lim- will be taken in custody to the foreign State.” ited circumstances a magistrate’s court may make9. See A Cassese, P Gaeta, J Jones (eds) The Rome an order of surrender. That is when the requesting Statute of the International Criminal Court: A State is one of a few States in Africa and there is Commentary (2002) vol II at 1676 – 1702. an extradition agreement in force to that effect. 11. Section 10 of the Implementation Act.

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