SOUTH AFRICA'S (POSSIBLE) WITHDRAWAL FROM THE ICC AND THE FUTURE OF THE CRIMINALIZATION AND PROSECUTION OF CRIMES AGAINST HUMANITY, WAR CRIMES AND GENOCIDE UNDER DOMESTIC LAW: A SUBMISSION INFORMED BY HISTORICAL, NORMATIVE AND POLICY CONSIDERATIONS.

• Published date: 22 September 2017
• Author: Kemp, Gerhard
• Date: 22 September 2017

TABLE OF CONTENTS
                INTRODUCTION 411
                1. SOUTH AFRICA'S WITHDRAWAL FROM THE ICC, INTERRUPTED
                 WHERE WE STAND NOW 414
                2. THE CORE CRIMES UNDER SOUTH AFRICAN LAW AND THE
                 PROSECUTION OF INTERNATIONAL CRIMES IN DOMESTIC
                 COURTS: THE PRESENT POSITION 417
                 A. The Implementation of the Rome Statute of the
                 International Criminal Court Act 418
                 B. The Implementation of the Geneva Conventions Act
                 ("Geneva Act") 420
                 C. Domestic criminalisation of other crimes of
                 international concern 420
                 D. Crimes under customary international law 421
                3. A HISTORY OF STRIVING FOR HUMANITARIAN AND HUMAN
                 RIGHTS IMPLEMENTATION 422
                4. SCENARIOS FOR THE WAY FORWARD 434
                

1. SOUTH AFRICA'S WITHDRAWAL FROM THE ICC, INTERRUPTED: WHERE WE STAND NOW

In October 2016, the South African government gave notice of its withdrawal from the Rome Statute of the International Criminal Court (ICC). According to Article 127 of the Rome Statute, the withdrawal takes effect one year after the date of receipt of the notification by the Secretary-General of the United Nations. (1) Apart from the notification of withdrawal, which falls within the executive domain, the judiciary and the parliament also have an impact on whether South Africa will eventually withdraw from the ICC. In a case before the High Court of South Africa ("Democratic Alliance'"), the Democratic Alliance (DA), a political party, challenged the government's decision to withdraw from the Rome Statute. The court entered final judgment annulling the notice delivered to the UN Secretary-General. Before the application by the Democratic Alliance was finalized in court, the Minister of Justice initiated a legislative process in the parliament to repeal the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ("ICC Act"). (3) The ICC Act implements the Rome Statute in South Africa, including establishing domestic violations of crimes of genocide, crimes against humanity, and war crimes as defined in the Rome Statute. The repeal bill proposed to repeal the ICC Act in its entirety. (4) However, after the judgment of the Democratic Alliance was delivered, the Minister of Justice withdrew the repeal bill from the parliament. (5) Nonetheless, a repeal bill can, of course, be reintroduced in the future.

The decision by the high court in the matter of Democratic Alliance has annulled the notice of withdrawal delivered to the UN Secretary-General. (6) The court decided that the notice of withdrawal, which was signed by the Minister without prior parliamentary approval, is unconstitutional and invalid. The cabinet decision to deliver the notice to the UN Secretary-General without prior parliamentary approval, was also found unconstitutional and invalid. The court thus ordered the relevant members of government, including the President of the Republic of South Africa, to revoke the notice of withdrawal. (7) It is important to note that the court did not wade into the merits of the debate on South Africa's withdrawal from the Rome Statute. The court was determined not to overstep the separation of powers. The court reasoned:

There is nothing patently unconstitutional, at least at this stage
                about the national executive's policy decision to withdraw from the
                Rome Statute, because it is within its powers and competence to make
                such a decision. What is unconstitutional and invalid, is the
                implementation of that decision (the delivery of the notice of
                withdrawal) without prior parliamentary approval. (8)
                

The court referenced Section 231 of the Constitution of the Republic, (9) which deals with treaty making powers and the incorporation of treaties into South African law. The court concluded that according to Section 231 of the Constitution, prior parliamentary approval of the executive decision to withdraw from the Rome Statute and the repeal of the ICC Act are required before the executive branch could deliver a notice of withdrawal. (10) Given the supremacy of the Constitution, the enactment of a repeal bill (should the executive branch decide to reintroduce a repeal bill) may still be challenged in the Constitutional Court on the basis that the repeal bill itself is in violation of the norms and values of the Constitution. Nonetheless the first step is for the parliament to debate the withdrawal from the Rome Statute and to repeal the ICC Act. While the parliament cannot cure the invalidity of the notice of withdrawal, the High Court emphasized that the Minister of Justice is acting well within his powers to present a repeal bill before the parliament. (11)

This is where we are now. South Africa's withdrawal from the ICC has effectively been halted by the High Court, and South Africa's government has dutifully withdrawn its notification of withdrawal from the Rome Statute. As of the time of writing, it was not clear whether the South African government still intends to withdraw from the Rome Statute. However, there is a political risk that the executive may initiate a withdrawal from the ICC in the future. Below is an exposition of the current treatment of international criminal law under South African law. The ICC Act constitutes a crucial part of this body of law. The paper concludes with some thoughts on the future development of incorporating international criminal law into the South African domestic legal system.

2. THE CORE CRIMES UNDER SOUTH AFRICAN LAW AND THE PROSECUTION OF INTERNATIONAL CRIMES IN DOMESTIC COURTS: THE PRESENT POSITION

South Africa's post-apartheid re-entrance into the international political system in the early 1990's coincided with the renewed interest in international criminal law as a normative ideal and concretization of international human rights and international humanitarian law.

During this period, South Africa dealt with its history of gross human rights violations by establishing the Truth and Reconciliation Commission (TRC) which was premised not on amnesia and blanket amnesty, but rather on truth and responsibility. (12) This is not to say that the TRC, which is quite different from other criminal prosecutorial modalities such as the various ad hoc international criminal tribunals and the permanent International Criminal Court, is not controversial. Indeed, it is not universally regarded as an acceptable alternative to criminal prosecutions for past atrocities, and it is today criticized as an inadequate vehicle to achieve its stated goals of truth and, even more so, reconciliation. (13) Nevertheless, during the time of transition, the South African TRC was hailed as a beacon of hope for dealing with the past in a peaceful and restorative way.

The internationally renewed emphasis on responsibility for gross human rights violations became the hallmark of the 1990's. This trend has inspired many countries, including South Africa, to adopt laws that incorporate aspects of international criminal law into domestic law.

A. The Implementation of the Rome Statute of the International Criminal Court Act

The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 was signed into law in the same year that the Rome Statute of the ICC entered into force. (14) The Preamble to the ICC Act signals South Africa's commitment to bring those who commit genocide, crimes against humanity, and war crimes to justice, either in a court of law of the Republic by prosecuting under its domestic laws, or in the event of the national prosecuting authority declining or being unable to do so, in the ICC.

The ICC Act criminalizes the crimes of genocide, crimes against humanity, and war crimes under South African law. (16) The ICC Act directly adopted the definitions of these crimes as they are provided for in the Rome Statute. (17) In order to achieve the stated goal of individual criminal liability for these crimes, the ICC Act provides that any person who commits an international crime is guilty of an offence under the ICC Act. (18) The Act further provides for four grounds of jurisdiction with respect to the prosecution of these crimes, namely: territoriality, nationality, active personality, and universality. (19)

With respect to universality as a basis for the investigation and possible prosecution of the above crimes, the Constitutional Court, in National Commissioner of the South African Police Service v. Southern African Human Rights Litigation Centre (20) ("Torture Docket Case") declared the following: "the exercise of universal jurisdiction, for purposes of the investigation of an international crime committed outside our territory, may occur in the absence of a suspect without offending our Constitution or international law." (21) The Constitutional Court held that the South African police has not only the power to investigate alleged international crimes, but a legal and constitutional duty to do so. (22) This duty extends to international crimes committed beyond South Africa's borders and to crimes committed within the territories of countries that are not parties to the Rome Statute "because to do otherwise would be to permit impunity." (23) The duty to investigate extraterritorial genocide, crimes against humanity and war crimes are subject to certain limitations, according to the Constitutional Court. These limitations include the principle of subsidiarity, the principle of non-intervention, and the principle of practicability. (24)

The Constitutional Court decision in the Torture Docket Case is a milestone in the domestic implementation development of international criminal law in South Africa. (25) Unfortunately, as will be discussed later in this paper, the progressive application of international criminal law via the ICC Act has become a victim of its own success, leading to the dramatic announcement of withdrawal from the Rome Statute by the South African government, as mentioned in the Introduction, which has been temporarily stalled by the High Court.

B. The Implementation of the Geneva Conventions Act ("Geneva Act")

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