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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 MARCH 2002
INTERNATIONAL CRIMINAL COURT BILL: DELIBERATIONS
Chairperson: Adv J H De Lange
Documents handed out:
International Criminal Court Bill [B42-2001]
Working draft of the Bill
"Crossing of the floor" legislation
The International Criminal Court Bill as tabled last year [B42-2001] had the Rome Statute attached to. The working draft of the Bill now has the provisions of the Rome Statute incorporated into the body of the Bill and the suggested new title is " "Implementation of the Rome Statute of the International Criminal Court in South Africa Bill".
The Department's legal advisors/drafters appeared before the Committee to answer questions concerning the International Criminal Court Bill. The Bill incorporates provisions included in similar legislation drafted by other countries. Issues raised included a jurisdictional reference made to military courts and the nature of the diplomatic immunity that would be enjoyed by employees of the court.
The Chair announced that the new "crossing of the floor" legislation would be would be published the following Monday in the Government Gazette and that Parliament could not pass the Bill within a month of it being tabled as the Bill would also have to go through the NCOP.
Dr J Delport (DP) felt that the Committee would be hard-pressed to get the Bill passed before the June recess.
The Chair responded that that would depend on how the NCOP decided to handle it and suggested that they have their hearings together to hasten the passing of the Bill.
He said that the Insolvency Bill had also arrived but the Committee was still waiting for the Corruption and Child Justice Bills. Approval had been received with regard to the Committee's provincial visits.
International Criminal Court (ICC) Bill
He enquired as to where in the Rome Statute of the International Criminal Court the procedures of the Court were referred.
Mr L Bassett, the drafter (accompanied by Mr Pienaar), replied that they were referred to in the Preamble and Articles 1 and 17, and indirectly in Articles 18 and 19.
The Chair said that it was important to bear those Articles in mind when reading through the Bill.
Mr Bassett added that he had received feedback from the South African branch of the International Committee of the Red Cross. The head of their legal branch was overseas at the moment but he had left the Bill with his office. He had also contacted Prof Rwelamira, who was also overseas at the moment but who offered to look at the document and appear before the Committee again to answer questions on it.
The Chair decided rather to go through the definitions of Clause 1 as the Committee came across them. He began at Clause 2.
Clause 2: Objects of the Act
The Chair suggested that there be an "and" between clauses 2(c)(iii) and (iv). He also recommended that clauses 2(c) and (d) be swapped and a further "and" placed between them.
Clause 3: Interpretation of the Act
Mr Bassett stated that Clause 3 had been "borrowed" from the Canadian legislation, which incorporated sections of the Rome Statute.
Dr Delport (DP) was of the opinion that the heading for the section was not appropriate because it regulated the law that would be applicable and not the interpretation of the Act.
The Chair agreed.
Clause 4: Jurisdiction of SA Courts in respect of crimes
Mr Bassett stated that this provision was also borrowed from the Canadian legislation and incorporated provisions of the Rome Statute.
Dr Delport (DP) was of the opinion that this was an important clause and was particularly concerned about Clause 4(2)(c), which confers jurisdiction if "that person, after the commission of the crime, is present in the territory of the Republic". He sketched the possible scenario of an alleged war criminal being abducted into South Africa, would he then be forced to stand trial before the ICC, given the circumstances?
The Chair replied that there should be a clause included to the effect that if a suspect is caught within the Republic, he should be handed over to the prosecuting state if it is decided not to prosecute him in South Africa.
Dr Delport commented that this would be in effect making the Bill a form of extradition treaty as well.
The Chair asked what would happen if the ICC had initiated a case but the suspect was found to be in South Africa. Would there be an obligation on South Africa to try him again and which court with take precedence?
Mr Bassett was unsure as to the answer and said he would research it.
The Chair asked why military courts were referred to in Clause 4(3).
Mr Bassett replied that military courts would operate in situations when, for example in the Congo, when it would be necessary for an immediate trial for an offence committed.
The Chair enquired as to what jurisdiction the National Director had over military courts. He was of the opinion that the National Director had no jurisdiction over them. He was also not sure if one would want the most severe crimes again humanity to be heard by a military and not a civilian court. There was a clear distinction between the courts contemplated under s166 of the Constitution and military courts. The problem was that 4(2) of the Bill only confers jurisdiction on s166 courts while 4(3) included a reference to military courts. As 4(3) was dependent on 4(2), a contradiction resulted. The principle should be that if military courts were to be included at all, it should be done in 4(2).
Dr Delport (DP) asked if it was intended to give all jurisdiction regarding these crimes to the ICC, or if the South African courts would maintain a parallel jurisdiction.
The Chair replied that jurisdiction would not be parallel but complementary. The ICC would only initiate a prosecution if the country having jurisdiction was unwilling or unable to do so, and the requirements to meet these criteria were clearly spelled out in the Rome Statute.
Dr Delport responded that that was the position taken by the ICC, but what was South Africa's position on the prosecution?
The Chair agreed with Dr Delport's concern. He said that 4(4) allowed the National Director to designate a competent court to hear a matter and it should be specified that only a High Court should be able to hear a matter while the National Director could specify the particular court.
Dr Delport (DP) suggested that the Chief Justice and not the National Director be the person having the responsibility of specifying the court.
The Chair accepted the suggestion to change it but felt that the Minister was the relevant person to decide on the specific High Court. This would also be keeping the Bill in line with other legislation.
The Chair examined the definition of "crime" and questioned why only three were referred to in the definition while four were identified in the Rome Statute.
Mr Bassett responded that the crime of "aggression" was not going to be included at this stage as paragraph 2 of Article 5 of the Rome Statute flagged this crime and made provision for a determination on its definition at a later stage.
The Chair felt that an amendment relating to aggression might have to be made at a later stage and that a resolution to this effect should be incorporated in the definition. The Chair enquired as to the definitions of the three crimes listed.
Mr Bassett responded that the department had decided to go the Canadian route of including a summarised version of the definition of the crimes. The alternative would be to give a more detailed definition as has been done by some other countries.
The Chair felt that a potential problem could be created if the definition in the Bill was to be interpreted differently from that in the Rome Statute. He recommended that an alternative route be examined.
Chapter 3: Functioning of Court in SA and its privileges and immunities
The Chair remarked that Clause 5 concerning the seat of the Court in the Republic was a political decision while Clause 6 regulated the actual privileges and immunities of the Court. He inquired if the provisions listed in Clause 6 reflected requirements set out in the Rome Statute.
Mr Bassett replied that although he had read through the Rome Statute, the Department of Foreign Affairs had worked on this particular section as the related expertise lay with them.
The Chair posed the question of a Court official who was bribed, would he then be immune from civil or criminal prosecution? He felt that this was most probably dealt with in the Act relating to Diplomatic Immunities, which incorporated a clause to the effect that the Secretary General of the UN could waive diplomatic immunity should the situation require it.
Mr Bassett read through the relevant section of the Act.
The Chair point out that although that was the clause that he had in mind, the Act itself related to the UN and its specialised agencies. The Court however, to his understanding, did not fall under the UN. He asked that the matter be checked and, if necessary, a clause be included in the Bill to provide for the wavering of diplomatic immunity by an appropriate person. He suggested that Prof Rwelamira be consulted concerning this issue.
Clause 7: Rights and privileges of witnesses in proceedings before Court
The Chair enquired if provision was made for this in the Statute. If not it could result in different rules applying in different countries. If the clause required, he requested that the words "in South Africa" be included at the end of the clause. The Chair raised the question whether the South Africa statute would have to reiterate the Rome Statute or could it stand alone.
Mr Bassett answered that the legislation was intended to stand alone. The Court would have to act in terms of the Rome Statute. The South African Act was intended to apply only when South Africa had to interact with the Court and the therefore sought to regulate only issues relating to that interaction.
The Chair looked through the remaining clauses. Concerning Clause 17 he enquired if it applied only in terms of the case being handed over to the ICC.
Mr Basset replied that this was not necessarily the case. It could also apply to investigations.
The Chair asked who would head the Court and to whom would the ICC report.
Mr Bassett responded that the President of the Court would be in charge of it and that a report would be made to the Assembly of States, which would be composed of those states that were a party to the Rome Statute.
The Chair deduced that the Court could not be a UN organisation if this were the case. He recommended that the provision relating to diplomatic immunity be altered accordingly or else the effect would be to give the employees of the courts legal immunity to be criminals. He enquired as to which law would have to be amended in terms of Schedule 1.
Mr Bassett replied that the Criminal Procedure Act would have to be amended to provide that the crimes listed in the Rome Statute could not prescribe.
The Chair requested that the issue regarding military courts be examined as well as the possibility of attaching a copy of the Rome Statute to the Bill for reference, as New Zealand had done. He read through the remaining definitions and asked that the definition of "offence" be clarified so that it would only apply in situations where the offence occurred in South Africa, when the ICC was seated in the Republic, when the offence was committed by a citizen of the Republic of someone ordinarily resident in it, or by request of the Court.
The Chair enquired which rules applied when a South African court was deciding on a related issue.
Mr Basset answered that South African rules of procedure would apply.
The Chair enquired if the Rome Statute entitled the ICC to hand down the death penalty.
Mr Bassett replied that Article 77 of the Statute provided that the most severe sentence that the Court could hand down was life imprisonment.
Dr Delport (DP) questioned a reference to the crime of aggression in the Preamble. He was of the opinion that the reference should not be made if the Bill made no further mention of it.
The Chair asked that it be checked if such a crime was in existence. If it did and even if there was no consensus on its definition, he requested that the reference to it in the Preamble remain. He further requested that the word "either" in the preamble be changed to alter the emphasis of the sentence.
Mr Bassett related a suggestion made by Mr Pienaar that a clause be included in the Bill to the effect that no Head of State could be immune from prosecution in South African courts, as this was clearly spelled out in the Rome Statute. The Chair agreed.