Prosecution of international crime in South Africa: new realities

  • Edwin Berman

Abstract

Marc Ravalomana might not be a familiar name to most South Africans, but he reserves the title in 2012 of being the first person to be investigated for international crimes against humanity[1] in South Africa.[2] The news must seem incongruous to those with an eye on the South African legal landscape, for although South Africa domesticated the Rome Statute of the International Criminal Court (ICC) through its promulgation of the Implementation of the 1998 Rome Statute of the ICC Act 27 of 2002, this promulgation occurred a decade ago; a decade in which not one investigation into serious crimes under the Act has been instituted.[3] The ignition into action of the South African authorities in this regard has not been attributed, in fairness, to the initial promulgation of legislation, now a decade past. Rather, the credit must go to the subject of Bentham’s words above. This note is a response to the judgment of the North Gauteng High Court in SALC v NDPP[4] which has effectively initiated into practice the ICC Act by indicating that South Africa cannot take another decade in condoning impunity for serious crime – the international obligations that the state itself undertook forbids this.


This article has three components. The first component offers a conceptual overview of jurisdiction. The second component focuses on universal jurisdiction and its controversies. The third component focuses on the SALC judgment and analyses the approach taken by the court.


 


[1] Both art 7 of the UN General Assembly Rome Statute of the International Criminal Court (17 July 1998), and art 7 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 define crimes against humanity to include acts ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. The definition allows the crime to manifest itself in a number of forms: ‘murder’, ‘extermination’, ‘torture’ and ‘rape’, amongst others.


[2] On the National Prosecuting Authority’s (‘NPA’) announcement of the investigation to the press on August 5th 2012 and the response from the alleged perpetrator and ousted President of Madagascar, see AFP ‘SA Probes Ousted Leader’ Web News Daily of 6 August 2012.


[3] Not a single investigation into international crimes for a decade is contrary and disappointing in light of the government’s participation in establishment of the ICC. On this participation see Sivu Maqungo ‘The Establishment of the International Criminal Court: SADC’s participation in the negotiations’ (2000) 9 African Security Review at 42, 43 detailing how, at the drafting stages, amidst contention over universal jurisdiction, the SADC delegation led by South Africa firmly supported the adoption of the court’s universal jurisdiction without exemptions. On the SADC states’ understanding that the ICC only works if ratification is taken seriously, see Ibid 50.


[4] Southern African Litigation Centre and Another v National Director of Public Prosecutions and Others 2012 (10) BCLR 1089 (GNP).

Published
May 1, 2013
How to Cite
BERMAN, Edwin. Prosecution of international crime in South Africa: new realities. Inkundla, [S.l.], may 2013. Available at: <https://inkundlajournal.org/index.php/inkundla/article/view/16>. Date accessed: 28 mar. 2024.
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