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? / PhD (Law), North-West University, Potchefstroom Campus, 2014
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/13340 |
| Date | January 2014 |
| Creators | Kayitana, Evode |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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