Introduction

The International Criminal Court (ICC) cameinto operation on 1 July 2003. It has beenwidely supported throughout the world andmore particularly in Africa and the SouthernAfrican region. This reflects the fact that inter-national, regional and national communitiesare of the view that individuals who committhe crimes of genocide, war crimes and crimesagainst humanity should be prosecuted fortheir conduct, and impunity for those crimesshould be avoided.

The ICC has been set up through a multi-lateral treaty known as the Rome Statute ofthe International Criminal Court (“the RomeStatute”). The object and purpose of the Rome

Statute is to put in place effective arrange-ments to prevent impunity for the crimes overwhich it will have jurisdiction. The ICC wasestablished to ensure that individuals subjectto the jurisdiction of a State party to the RomeStatute who are suspected of committing thecrimes of genocide, war crimes and crimesagainst humanity are subjected to properinvestigation and, if a sufficient case exists, areprosecuted, and, if found guilty are duly pun-ished for their conduct. An important elementin the scheme of the ICC is that if nationalcriminal justice processes are adequate toensure investigation, prosecution and punish-ment in respect of the relevant crimes, theyshould be used. This notion, called ‘comple-mentarity’, is expressed in the preamble and in

AN ACT OF TRANSFORMATIONThe 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 agreementor treaty. All states have the right to become parties to it. When a state does ratify or accede toit, it incurs international obligations to the other State Parties to the agreement. State Partiesmust 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 Statuteinto national (municipal) law by passing the Implementation of the Rome Statute of theInternational Criminal Court Act 27 of 2002. This is a commendable step in ensuring that itsinternational 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 RomeStatute is somewhat defective. There is no provision for any competent authority, whether acourt or the executive branch of government, to issue an order of surrender. This defect shouldbe remedied as soon as possible.

FEATURE

ANTON KATZ is a member of the Bar in Cape Town and New York, and is a practising advocate at the Cape Bar.

Articles 1 and 17 of the Rome Statute. Thepreamble states:

‘the International Criminal Court estab-lished under this Statute shall be comple-mentary to national criminal jurisdictions’

If there is a risk that a suspect will avoid inves-tigation and prosecution, then the ICC is cal-culated, in principle, to fill the gap. The mainpurpose is not international prosecution assuch. It is the prevention of impunity. Statesare given the first opportunity to exercisecriminal jurisdiction. Individuals who areguilty of the serious crimes, which are subjectto the jurisdiction of the ICC, must takeresponsibility for their conduct and not beshielded by states that are unwilling or unableto investigate and prosecute them.

The Rome Statute is a multilateral treatyand like any international agreement must beconsidered in both international law and inthe domestic law of the respective State Partiesto the treaty. Thus, for some states, ratificationof, or accession to, the Rome Statute may wellcause them to become bound on the interna-tional plane and thus incur international obli-gations vis-à-vis other State parties to theRome Statute whilst at the same time nodomestic legislation is in place giving forceand effect to the international obligations soundertaken. State parties may thus find them-selves willing but not able to satisfy theirinternational obligations.

International law applied locally

There are two main approaches to the subjectof the relationship between international lawin the form of treaties and international obli-gations incurred in respect of such agreementson the one hand and municipal law on theother. The first, the monist school maintainsthat international and municipal law are to beregarded as manifestations of a single concep-tion of law. Monists thus argue that municipalcourts are obliged to apply rules of interna-tional law directly without the need for anyact of transformation of the provisions of theinternational agreement by the legislature intonational (municipal) law. For them, interna-tional law is immediately incorporated intomunicipal law without any act of adoption or

transformation once the State becomes aparty to the international agreement or treaty.

Dualists, the second school, on the otherhand view international law and municipallaw as completely different systems of law.This has the result that domestic courts mayonly apply international law, and specificallytreaties, if, and only if, those treaties havebeen transformed into municipal law by legis-lation. The classic formulation of this positionis reflected in the dictum by the AppellateDivision of the Supreme Court in SouthAfrica in Pan American World AirwaysIncorporated v SA Fire and Accident FireInsurance Company Ltd1, where CJ Steyn CJstated:

‘…in this country the conclusion of atreaty, convention or agreement by theSouth African government with anyother government is an executive andnot a legislative act. As a general rule,the provisions of an international instru-ment so concluded, are not embodied inour municipal law, except by legislativeprocess…In the absence of any enact-ment giving [its] relevant provisions theforce of law, [it] cannot affect the rightof the subject.’

Many African States follow a similar positionto that of South Africa.2 Most, although notall, Anglophone states follow the dualistapproach. A few do not. Thus for example,Article 144 of the Namibian Constitution of1990 provides that “Unless otherwise provid-ed by this Constitution or Act of Parliament,the general rules of public international lawand international agreements binding uponNamibia under this Constitution shall formpart of the law of Namibia.” MostFrancophone States follow an approach ofdirect incorporation and there is thus no needfor any act of transformation into municipallaw.

For States that follow the dualist positionbecoming a party to the Rome Statuterequires an act of transformation so that obli-gations undertaken may lawfully be giveneffect to. Thus, for example once South Africahad ratified the Rome Statute, it, being a dual-ist State, was required to enact legislationbringing its provisions into its municipal law.

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crimes under the common law and were notstatutory crimes. It was therefore necessary forParliament to enact a law, which made suchconduct a crime under the laws of SouthAfrica and to specify the conduct that consti-tuted the crimes. This was done by causing thethree crimes to be defined in the definitionsection in the Implementation Act with refer-ence to the definitions contained in the RomeStatute. Section 1 of the Implementation Actdefines a “crime” to mean the crime of geno-cide, crimes against humanity and war crimes.A “war crime” is defined to mean any conductreferred to in Part 3 of the Rome Statute. Theintroduction of these most serious crimesonto the law books in South Africa is to bewelcomed. Prosecutors and courts in SouthAfrica are now in a position to investigate,prosecute, try and sentence those personsguilty of the appalling conduct that gives riseto these crimes.

It appears, prima facie, that the essential andrelevant elements of the Rome Statute and theICC have been incorporated into SouthAfrican law. South Africa should thus be in aposition to comply with its international obli-gations in respect of the ICC.

However, closer scrutiny reveals that theremay be difficulties incorporating provisionsconcerning requests by the ICC for assistanceand co-operation. Chapter 4 of the Act is head-ed ‘Co-operation With and Assistance to CourtIn or Outside South Africa’. It consists of sec-tions 8 to 32, which are divided into two parts.Part 1 (sections 8 to 13) deals with the arrest ofpersons and their surrender to the ICC whilepart 2 (sections 14 to 32) deals with judicialassistance to the ICC. Part 2 is primarily con-cerned with assistance in the areas of obtainingof evidence, examination of witnesses, searchesand seizure and the registration of restraintorders in respect of assets and registration finesor compensatory orders. It is part 1, concerningthe surrender or transfer of a person to theICC, which may give rise to difficulties.

Extradition, transfer or surrender

The ICC will obviously have to rely on thenational authorities of the State Parties to theRome Statute to secure the attendance ofaccused individuals. Trials in abstentia are not

Until it had done so, courts in South Africacould have no regard to the provisions of theRome Statute and the South African authori-ties would not have been entitled to act interms of its provisions. Thus unless crimesagainst humanity, war crimes and genocidewere crimes under South African law prior toincorporation of the Rome Statute a personcould not lawfully be charged and convictedof any of these crimes in a South AfricanCourt. Similarly, prior to incorporation, arequest by the ICC for the surrender or trans-fer of a person to it could not be acted uponin South Africa without some other source ofpower to do so.3

South African implementation

On 18 July 2002, some 17 days after the RomeStatute entered into force and the existence ofthe ICC became a reality, the South AfricanParliament passed the Implementation of theRome Statute of the International CriminalCourt Act 27 of 2002. (“The ImplementationAct”).4 The Implementation Act was adoptedwith the object of creating a framework to giveeffect to the provisions of the Rome Statute inthe law of South Africa. South Africa, havinglodged its instrument of ratification and theRome Statute having coming into force,incurred international obligations in respectof the investigation and prosecution of crimesagainst humanity, war crimes and genocideand to assist the ICC whenever necessary.

Appropriately, the entire Rome Statute isattached to the Implementation Act as a sched-ule and “Rules” are defined to mean the Rulesof Procedure and Evidence referred to in Article51 of the Rome Statute. This allows SouthAfrican Courts to have regard to the relevantsubstantive and procedural provisions.

Criminalisation of the most serious crimes

In South Africa, prior to the enactment of theImplementation Act, conduct constituting thecrimes of genocide, crimes against humanityand war crimes may have been tried and pun-ished as ordinary crimes such as murder, rapeand robbery. However the specific crimesmentioned may not have been tried in theCourts of South Africa because they were not

Katz 27

permitted by the ICC Statute.5 For the ICC tohave any meaningful effect, adequate proce-dures must be in place to bring guilty personsbefore the ICC. Because of the principle ofcomplementarity, the issue of the arrest andsurrender of a person found, for example in theterritory of South Africa, only arises in theevent of South Africa being either unwilling orunable to investigate and prosecute the person. Article 59 of the Rome Statute deals with arrestand what is termed “surrender” proceedings inthe custodial State. It is should be mentionedthat during the negotiations leading up to theadoption of the Rome Statute, three differentterms were considered for the act of delivery ofa person to the ICC. Extradition,6 the tradi-tional method of securing the presence of fugi-tives to stand trial or serve a sentence was notacceptable to certain States because of consti-tutional restrictions on the extradition ofnationals.7 The concept of transfer, where theperson sought is merely arrested and sent tothe ICC was rejected because the usual safe-guards contained in the extradition processconcerning the curtailment of liberty wereabsent.8 As a compromise the term surrenderwas adopted in the Rome Statute.9 This com-promise has unfortunately found its way intothe Implementation Act.

In South Africa requests by foreign statesfor the extradition of a person are dealt withby the various authorities in terms of the pro-visions of the Extradition Act 67 of 1962 (“theExtradition Act”). The process essentially con-sists of the minister of justice receiving arequest and determining whether the extradi-tion process should proceed. If the processdoes continue a hearing is held before a mag-istrate’s court. The court only determineswhether the person is extraditable. It does notdecide on the issue of extradition itself. Anegative finding on this issue is final whereasin the event of a positive finding the executivebranch of government, in the form of theMinister of Justice, is then required finally todecide whether an extradition (or surrender)order should be made.10 The Extradition Actmakes it clear that it is the minister, and onlythe minister, who has been given the power toissue an order of surrender in the context of arequest for extradition.

The process of dealing with requests by theICC for the surrender of a person set out inthe Implementation Act is similar, but notidentical, to the extradition process set out inthe Extradition Act. The surrender provisionsdo however have significant differences fromthose relating to extradition. This is the resultof an attempt by Parliament to streamline theprocess and thus make it quicker and easier tosurrender a person to the ICC compared tothat of extradition to a foreign state. An exam-ination of the surrender provisions in theImplementation Act indicates that theattempt may not have been successful.

Arrest and surrender provisions

A request from the ICC for the arrest and sur-render of a person is to be referred to the direc-tor general of the Department of Justice. Thedirector general shall immediately forward therequest to a magistrate who must endorse thewarrant of arrest for execution in any part ofSouth Africa. The endorsement of the warrantof arrest does not appear to be the issue of anorder of surrender to the ICC. This is con-firmed by the existence of other provisions ofthe Implementation Act because there are fur-ther steps necessary after such endorsement.The next step provided for is a hearing before amagistrate, just like in the case of extradition.The hearing is ‘with a view to the surrender ofthat person’.11 The magistrate holding theinquiry is to consider the evidence adducedand must establish three issues. The first issue is whether the warrant applies tothe person in question; second, whether theperson has been arrested in accordance withthe procedures laid down by domestic law, andthird, whether the rights of the person havebeen respected. If the magistrate is satisfiedthat the three requirements have been com-plied with he or she must issue an order com-mitting the person to prison pending his or hersurrender to the ICC. (“a committal order”) Itis important to note that section 10(5) of theImplementation Act provides that the magis-trate does not issue an order of surrender butrather an order of committal to prison.

The provision in the Implementation Actdealing with the removal of persons, section11(1), refers to any person in respect of whom

28 African Security Review 12(4) • 2003

off if they have clever lawyers. Other than theguilty, the only beneficiaries of these technicalhitches are the lawyers who may are paidhandsomely to advance the technical points.It is imperative that these issues be consideredand, where necessary, legislation must beenacted and amended if appropriate.

Notes1. 1965 (3) SA 150 (A) at 161 C – D; The modern

position is similar and is reflected in section231(4) of the Constitution of the Republic ofSouth Africa Act 108 of 1996.

2. See T Maluwa ‘The incorporation of internation-al law and its interpretational role in Africa: anexploratory survey’ (1998) 23 South AfricanYearbook of International Law 45.

3. There is no constitutional or legislative provisionwhich empowers the authorities in South Africato request extradition. The Extradition Act 67 of1962 provides only for requests to South Africa.The ICC is not mentioned at all in theExtradition Act. In most States the exercise of anypower by the executive authorities must be madein terms of a power granted by the Constitutionor legislation. Responses by the South Africanauthorities to requests by the ICC must be basedon 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 – theimplementation of the Rome Statute of the InternationalCriminal Court Act 2002’, 16 South AfricanJournal of Criminal Justice’ (2003) 1.

5. Article 63 of the ICC Statute provides that theaccused shall be present during the trial.

6. The process of extradition is a bilateral eventbetween two sovereign states. One sovereign statesurrenders an individual situated in its territory inresponse to a request for extradition by anothersovereign state. The purpose of surrender is toensure that the sought-after individual (fugitive)stands trial or serves a sentence in the requestingstate. Extradition is the surrender by one state, atthe request of another state, of a fugitive who iseither accused or convicted of a crime by therequesting state.

7. States with a civil law tradition (such as Germany,France, Spain and Italy) as opposed to a commonlaw tradition do not as a rule ever extradite theirown citizens.

8. Indeed Justice Goldstone, writing for the entireConstitutional Court in South Africa, stated inGeuking v President of Republic of South Africa 2003(3) SA 34 (CC) that: “Extraditing a person, espe-cially a citizen, constitutes an invasion of funda-mental human rights. The person will usually besubject to an arrest and detention, with or withoutbail, pending a decision on the request from the

an order to be surrendered has been givenunder section 10 (5). Section 10 (5) does notrefer to “an order to be surrendered.” Noother section refers to an order to be surren-dered. Thus it appears that the scheme ofarrest and surrender to the ICC provided forin the South African legislation to give effectto the Rome Statute is somewhat defective.There is no provision for any competentauthority, whether a court or the executivebranch of government, to issue an order ofsurrender. Accordingly, the ImplementationAct does not properly, or at all, provide theSouth African authorities with the necessarypower to respond to a request for surrender bythe ICC. This anomaly is explained by theattempt to utilize only parts of the extraditionprocess without a full consideration of theeffect of leaving out the other parts. This isprobably as a result of the attempt to reflectthe compromise on the issue of extradition inSouth African law. Because of this, SouthAfrica may not be able to comply with itsobligations to assist the ICC in securing theattendance of a person before it. This anomalyshould be corrected as soon as possible.

Conclusion

The importance of preventing persons whoare guilty of the most serious crimes obtainingimpunity cannot be denied. States are to becommended for having enthusiasticallyembraced the concept of international justicefor the most serious crimes. Good intentionsand political will are however not sufficient.There must be precision and care in effectingthe appropriate tools to give effect to thoseintentions. States parties to the Rome Statuteof the International Criminal Court, whichadopt a dualist approach to international lawin the form of treaties, must take whatever leg-islative steps are required to bring the provi-sions of the Rome Statute into municipal law.However, in doing so, care must be taken thatsuch incorporation is done properly. It is oflittle assistance to humankind for states to paylip service to global ideals by becoming partiesto international treaties and then being unableto give effect to their provisions because oftechnical reasons. This allows the guilty to get

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foreign State. If surrender is ordered, the personwill be taken in custody to the foreign State.”

9. See A Cassese, P Gaeta, J Jones (eds) The RomeStatute of the International Criminal Court: ACommentary (2002) vol II at 1676 – 1702.

10. Section 11 of the Extradition Act. In certain lim-ited circumstances a magistrate’s court may makean order of surrender. That is when the requestingState is one of a few States in Africa and there isan extradition agreement in force to that effect.

11. Section 10 of the Implementation Act.

30 African Security Review 12(4) • 2003