Jurisdictional problems of South African courts in respect of international crimes
Because of its mandate and its enforcement powers, the ICC has been hailed as a major advance on the road towards individual accountability for the perpetration of the most heinous violations of human rights (international crimes) and thus as a major contribution to the prevention of such horrible crimes. However, with its limited resources in terms of human and financial means, the ICC will not be able to deal with all perpetrators of the crimes that come under its jurisdiction wherever such crimes are committed throughout the world. For this reason, in order to end impunity in the commission of international crimes, there will always be a need for combined efforts by the ICC and national courts. This reality is recognised by the Rome Statute which, in the preamble and article 1 of the Statute, provides that the jurisdiction of the ICC is “complementary” to national courts and that, therefore, States Parties retain the primary responsibility for the repression of international crimes. In legal literature, this is generally referred to as the “principle of complementarity” or the "complementarity regime of the Rome Statute”. In order to give effect to the complementarity principle of the Rome Statute, South Africa passed the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (hereafter the Implementation Act); which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts. The Implementation Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on South African territory but also when they are committed outside the Republic, thus empowering South African courts to exercise “universal jurisdiction” over these three international crimes. This thesis examines the extent to which South African courts, acting under the complementarity regime of the Rome Statute are, or are not, allowed to exercise universal jurisdiction over international crimes committed in foreign States. The study is based on two assumptions. First, it is assumed that since under the principle of complementarity South African courts are required to do the same job as the ICC, they should have the same powers as those States Parties gave to the ICC when they adopted the Rome Statute. Secondly, it is assumed that, although having the same mandate as the ICC in terms of the complementarity principle, South African courts are nonetheless domestic courts as opposed to the ICC which is an international court and that, accordingly, the international law principle of State sovereignty may impose limitations on their ability to exercise universal jurisdiction over international crimes committed in foreign States. In the light of the above assumptions, this study investigates three issues. Firstly, do South African courts have the same powers as the ICC has to disregard immunities of foreign States’ officials which, under international customary law, attach to their functions or status? Secondly, are South African courts entitled, as the ICC is, to disregard amnesties granted by foreign States, either in the process of national reconciliation or as means to shield the criminals from prosecution by the ICC? Finally, are South African courts entitled, as the ICC is, to retry a case which has already been tried in a foreign country but with the aim of shielding the accused from criminal responsibility or where, for example, the sentence imposed was too lenient in comparison with the gravity of the crime?
- Law