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“Active Complementarity: The South African Example”

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Angela Mudukuti; International Criminal Justice Lawyer at the Southern Africa Litigation Centre

The International Criminal Court (ICC) continues to battle with allegations that it is
targeting Africa. This unfortunate perception needs to be dealt with in a direct fashion by
continuously delivering the message of complementarity. The principle of complementarity
is one of the founding tenents of the Rome Statute and the vision of the drafters at the Rome Conference was a comprehensive system of international justice, where states share the burden of ending impunity and providing justice for victims of egregious crimes. The South African examples of complementarity display how this comprehensive system can actually be effective.

It was the former prosecutor of the ICC who stated that “the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of regular functioning of national institutions, would be a major success.” The current Prosecutor Fatou Bensouda continues to advance and uphold the same sentiment.

There is no shortage of references to complementarity in the Rome Statute, it starts in the
Preamble and continues throughout the relevant articles. This principle is the mechanism by which the ICC becomes a court of last resort, giving national jurisdictions primacy and an opportunity to tackle core international crimes.

It is only if a state is unwilling or unable to tackle the commission of core international
crimes that the ICC will intervene. That being said, how should states be ensuring justice at the domestic level? States are required to sign, ratify and domesticate the Rome Statute, effectively giving them the legislative framework to address crimes that shock the
conscience of humanity.

Ensuring justice is done at a domestic level is crucial. The above mentioned perception that the ICC is targeting Africa has resulted in an unprecedented backlash from certain African countries. This has included threats of withdrawal from the ICC and acts of non-­‐‑
cooperation. It has made the application of justice on a domestic level vital, now more than
ever.

Unfortunately in Africa, to date, only South Africa, Kenya, Uganda, Burkina Faso and
Senegal have amended their laws to allow the prosecution of core international crimes. It is the example set in South Africa that takes center stage in this piece.

South Africa domesticated the Rome Statute in 2002, by way of the South African
Implementation of the Rome Statute of the ICC Act (ICC Act). This crucial piece of
legislative foresight and genius has paved the way for groundbreaking and precedent
setting jurisprudence and allowed for the world to witness complementarity in action.
The ICC Act is the embodiment of South Africa’s commitment as a member of the
community of nations fighting impunity and seeking to protect universal human rights.

To domesticate the Rome Statute, South African policy makers, legal minds, and civil society organisations, had to put their heads together and put the wheels of justice in motion.

The South African ICC Act criminalises genocide, war crimes and crimes against humanity and provides for the mechanisms required to implement the law.

To accompany the ICC Act, a Priority Crimes Litigation Unit (PCLU) was set up within the
structures of the National Prosecuting Authority. They are mandated specifically to handle
crimes of this nature. Thus not only is the correct law in place but the institutions required to implement this law also exist.

South Africa’s ICC Act has provided fertile ground for two very important cases both
bought by the Southern Africa Litigation Centre (SALC). Firstly, the Zimbabwe Torture case where the highest court in South Africa ruled that crimes against humanity perpetrated in Zimbabwe by Zimbabweans against Zimbabweans can and should be investigated in South Africa. Secondly, the June 2015 attempt to arrest and transfer President Omar al Bashir to the ICC.

The Zimbabwe Torture Case, (SALC v the National Director of Public Prosecutions) was the first case brought in terms of the ICC Act. It sought to have the South African Authorities investigate crimes against humanity perpetrated in Zimbabwe, by Zimbabweans, against Zimbabweans, in South Africa.

This was possible due to the presence of the victims and witnesses in South Africa, the
element of universal jurisdiction in the ICC Act and the fact that the suspected perpetrators travelled frequently to South Africa.

SALC collected a dossier of evidence that showed that torture had been perpetrated as a
crime against humanity by the Zimbabwe state police in 2007. Members of a political
opposition party were targeted, arrested and allegedly tortured by state police operating
under instructions from the ruling political party. Armed with this compelling dossier of
evidence SALC presented it to the South Africa authorities requesting them to conduct an
investigation as required by the ICC Act.

The South African authorities refused to investigate. SALC took that refusal to investigate
on judicial review and was successful at every level of adjudication. The matter ended in the highest court in South Africa where the Constitutional Court ruled that South Africa had a duty to investigate the crimes against humanity as per SALC’s dossier. The Court ordered in October 2014 that investigations begin without further delay. Investigations are currently underway.

This case shows that domestic courts truly can act in a complementary fashion. It also shows that where the ICC cannot act, states must. For example Zimbabwe is not a signatory to the Rome Statute and is unlikely to be referred in terms of the United Nations Security Council referral and thus, like many other nations, it falls through the cracks of the international criminal justice system. But thanks to the domestication of the Rome Statute in South Africa and its element of universal jurisdiction, victims of crimes against humanity in Zimbabwe can have access to justice.

The next case that relied heavily on the ICC Act, SALC v the Minister of Justice and Others, was the attempt to have the ICC arrest warrant for President Bashir of Sudan implemented in South Africa during his visit in June 2015. President Bashir was invited to attend the 25th African Union Summit, held in Johannesburg South Africa. As a signatory of the Rome Statute and having domesticated the Statute, South Africa had an international and a domestic law duty to arrest President Bashir for subsequent transfer to The Hague.

Upon hearing that Bashir had arrived and had not been arrested SALC approached the High Court on an urgent basis seeking his immediate arrest. The government sought a
postponement of the matter and the Court agreed but correctly ordered that President
Bashir was not to leave the country pending the finalisation of the legal proceedings. They
also ordered that all ports of entry and exit be notified of this order.

The government informed the High Court that all ports had been accordingly notified.
After hearing legal arguments from SALC and the relevant government authorities the High
Court ordered that in terms of domestic and international law, President Bashir should
immediately be arrested for transfer to The Hague. It was at that moment that the state
informed the High Court that they believed President Bashir had just left the country in
violation of the Court’s first order.

The state’s failure to arrest Bashir was ruled to be unconstitutional and an affront to the rule of law. The state is appealing this ruling proffering the argument that President Bashir had immunity as a head of state. On 16 March 2016, the Supreme Court of Appeal ruled that the South African govenment had a duty to arrest President Omar al Bashir under domestic and international law and that failure to arrest him was unconstitutional. The matter is currently before the Constitutional Court of South Africa.

Both of these cases illustrate the role domestic courts can play if the correct legislation is in place. This truly is complementarity in action. The reality is that the ICC alone cannot bear the burden of administering international criminal justice. Instead states must step up to the proverbial plate and put measures in place that will assist us all to reach our united goal of preventing impunity.

Domestication of the Rome Statute is an important step in making complementarity a
reality. Without the appropriate legislation, there can be no domestic justice for international core crimes. International criminal law is a force of positive change and it must be used to advance human rights, prevent impunity and provide justice for all.

Angela Mudukuti is the International Criminal Justice Lawyer at the Southern Africa Litigation Centre (SALC) where she has worked on precedent setting cases on crimes against humanity before the Constitutional Court. In her capacity at SALC Angela is involved in advocacy around international criminal justice issues and strategic litigation. Prior to joining SALC, Angela worked for the Immediate Office of the Prosecutor at the International Criminal Court in The Hague. She also worked at the International Institute for Higher Studies in Criminal Sciences under the supervision of Prof Cherif Bassiouni in Italy, conducting research and a legal analysis into human rights violations in Libya during and after the revolution. Prior to that, Angela worked in private practice as lawyer assisting with civil and criminal matters. Angela has an L.LB and an LLM in Transitional Justice, International Criminal Law and Anti-Corruption and Money Laundering.

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