Protocol on the Establishment of the African Court on Human Rights; Implementation of the Rome Statute of the International Crim

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Justice and Correctional Services

22 May 2002
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 May 2002
PROTOCOL ON THE ESTABLISHMENT OF THE AFRICAN COURT ON HUMAN RIGHTS; IMPLEMENTATION OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT BILL: DELIBERATIONS

Documents handed out:
Report of the Portfolio Committee on Justice and Constitutional Development on the Protocol on the Establishment of the African Court on Human and People's Rights (See Appendix 1)
Implementation of the Rome Statute of the International Criminal Court Bill [B-2002]
Report of the Portfolio Committee on Justice and Constitutional Development on the International Criminal Court Bill, dated 23 May 2002 (See Appendix 2)

SUMMARY
The Committee considered the Report of the Committee on the Protocol on the Establishment of the African Court. The report pointed out the possibility of a possible conflict between the South African Constitution and the African Charter on Human and People's Rights, although conceding that in practice the possibility was remote. The Chair felt that issues discussed by the Committee were not fully reflected in the report.

The Committee deliberated on the Implementation of the Rome Statute of the International Criminal Court Bill. It was agreed to move the definition of the crimes from Clause 4(1)(b) to the definition section. The Department was asked to research the possibility of allowing for a sentence other than imprisonment or a fine.

MINUTES
The Chair announced that the Committee would not be dealing with the crossing the floor legislation on 24 May because the Minister had not finished consultations. He said that because the Committee was pressed for time, the next opportunity they had to deal with the legislation was Friday 31 May. He asked Mr Allers, of the Department of Justice, to brief the Committee on the issue of the African Court.

African Court
Mr Allers said that he had tried to incorporate all the different views in the draft report presented to the Committee. The first paragraph states that the Committee will accept the Protocol without reservations, as indicated by the words "approve the said Protocol". The second paragraph indicates the further opinion of the Committee while the last paragraph lists issues noted by the Committee.

He read through the second paragraph of the report, which noted the Committee was of the opinion that if adopted the Protocol would result in a dual system of protection of human rights- one in terms of the Constitution and the other in terms of the African Charter on Human and People's Rights. However, from a practical point of view, the possibility of this happening was "just nil".

Mr Allers noted that the words "just nil" would be changed to "remote".

The Chair felt that the document was a starting point and was not completely correct yet. He asked Mr Allers to look at it as he felt that it did not fully capture the discussion that had been had at the previous meeting, for example, it should state that internal remedies must be exhausted before a matter could be taken to the African Court and that at this stage the Protocol only applies to States although the issue of NGO's needed to be explored.

International Criminal Court Bill
Dr Basset and Adv Pienaar, legal advisors for the Department of Justice and Constitutional Development, were present to brief the Committee on amendments made to the Bill. Dr Basset introduced Adv Maqungo, legal advisor at the Department of Foreign Affairs, who would deal with the provisions relating to diplomatic privileges.

The Chair welcomed Adv Maqungo.

Dr Basset stated that the revised Bill reflected changes made by the Committee on the 21 of May 2002. Shaded areas reflected insertions or deletions.

The Chair said that the first issue was to introduce it as a new Bill because of all the changes. The second issue was to improve the name by finding a better word that "implementation". The word "facilitation" had been suggested but that usually only meant to help.

Preamble
Mr Basset read the changes made to the second bullet of the preamble, which reflect the suggestions made by the Committee.

The Chair recommended that the word "alternatively" be changed and the word "declining" be substituted for "unwilling".

Chapter 1
Clause 1: Definitions
The Chair queried the question marks placed at the end of subclause 1(i).

Dr Basset replied that they were reminders to suggest that the clause refer to the Director-General responsible for the administration of justice.

The Chair moved on to subclause 1(iv), defining a "crime".

Dr Basset responded that the reference to subclause (2) of Clause 4 had been removed from the definition, as it had been an incorrect insertion.

The Chair suggested that he be more specific and refer to subclause 4(1).

Clause 2: Applicable Law
Dr Basset noted that the word "also" had been inserted into the provision so that it provided that "any competent court... must consider and, where appropriate, may also apply-"

The Chair suggested that the "also" be moved so that the clause read "must also consider and may apply" so that it place an obligation on the court.

Clause 3: Objects of the Act
Dr Basset noted that the term "try and punish" had been changed to "hear cases against".

The Chair recommended that it be changed to enable the Republic's prosecuting authority to prosecute and the Republic's High Court in the first instance to adjudicate upon the matter.

Dr Basset said that the Department had considered the word "adjudicate". He noted a further change to sub (c) had been to insert the phrase (persons) "who are alleged", to bring it in line with sub (d).

Adv Maqungo felt that the words "in the first instance" inferred that the International Criminal Court (ICC) would then become the Appeal Court and this would go against the principle of complementarity.

The Chair replied that the South African courts were the courts of first instance and it was only when they chose not to prosecute an issue that the ICC would step in.

Adv Maqungo agreed with the Chair but felt that it was not necessary to qualify the provision because South African courts were the courts of first and last instance if they chose to prosecute a matter. He suggested that the phrase be deleted.

The Chair felt that too much was being read into the phrase but considering the consequences he suggested that it be placed in brackets for a final decision to be made later.

Adv Masutha (ANC) questioned the move away from the phrase "try and punish".

The Chair responded that the phrase was ambiguous as different meanings could be read into it. It had been split to read more clearly.

Adv Masutha replied that punishment was inherent in the word "try" and suggested that only that word be used.

The Chair explained that the intention was to emphasise the prosecution aspect as well as the trial aspect and prosecution was not necessarily a part of trying.

Chapter 3: Functioning, Privileges and Immunities of Court in SA
Dr Basset asked the Chair's permission to jump to Chapter 3 as he was concerned about time as this was Adv M's field. He said that no new changes were made to the Chapter and asked if the members had any issues to raise.

The Chair asked if Adv Maqungo was happy with the removal of Clause 7.

Adv Maqungo replied that he was.

Dr Basset noted that during a previous discussion the Chair had raised the question of what would happen if an official of the Court were found corrupt.

The Chair thought that the answer lay in the Diplomatic Immunities and Privileges Act, where it had been explained that diplomatic immunity was not absolute and that, in certain circumstances, immunity may be waived. He imagined that the situation would be the same here.

Adv Maqungo confirmed that that was correct. The purpose of immunity was to enable officials to function and that the head of the officials may waive the immunity.

Adv Masutha was of the opinion that sub (2) was a lot "tighter" than sub (1) as it was linked to an Act. Subclause (1) gave the impression of relating to a separate principle that granted privileges in addition to those relating to the Act.

Adv Pienaar responded that Article 48 of the Rome Statute (RS) states that the Court and its officials shall enjoy privileges and immunities so sub (1) made it compulsory that they enjoy it. This was further prescribed in terms of domestic legislation and further discretion was given to the Minister in terms of sub (4).

Adv Masutha felt that the sub (1) stood on its own and was not linked to an Act or the RS and therefore could be read as a whole new process.

Adv Maqungo said that the RS had been taken into account, as had s 4(2) of the Diplomatic Immunities and Privileges Act when drafting the provision. He suggested that the problem could be resolved by redrafting the provision.

The Chair suggested that the provision specify that judges and other officials of the court shall enjoy immunities and privileges and thereafter list them. He asked if that would work.

Adv Maqungo agreed that that could work.

Chapter 2: Jurisdiction of South African Courts in respect of crimes and institution of prosecutions in South African courts.
Dr Basset said that the Department had been asked to look at the heading but since Clause 4 had been split into two sections, the heading of the Chapter had been amended to reflect both sub-headings.

The Chair suggested that the phrase "in respect of crimes" be moved to the end of the heading.

Clause 4: Jurisdiction of South African Courts in respect of crimes
The Chair noted that the reference to "this Act" had been removed from Clause 4(1)(a) and that sub (ii) had been added to sub (2) to provide that the fact of having held an official position may not be used as grounds for a reduction of sentence.

Ms Camerer (NNP) remarked that the sentences provided for in Clause 4(1)(a) did not allow for other forms of sentences such as community service.

The Chair said that what Ms Camerer was saying was that the clause only allowed for three forms of sentences: imprisonment, a fine, or both and excluded any other creative ideas.

Dr Basset said that he would look at it.

The Chair noted that it was important at that was the standard clause that was inserted into Bills. He asked if there were any further questions.

Adv Masutha, referring to the term "act or conduct" in Clause 4(1)(b) said that the word conduct included an act or omission, so it was necessary only to refer to "conduct". The Chair agreed.

The Chair noted that Clause 4 used the phrase "for purposes of this Chapter" and raised the issue of it also applying to Chapter 1.

Dr Basset asked if it was necessary.

The Chair replied that he did not know, however Chapter 1 contained definitions, the applicable law and rules of interpretation. He felt that it was not really for purposes of the Chapter as three new crimes were being created.

Adv Pienaar suggested that it be changed to "for purposes of this Act".

The Chair asked if it were necessary logically to have "for purposes of this Act". He asked if genocide, war crimes and crimes against humanity had been defined as such and suggested that sub 4(1)(b) state that the crime of genocide is (...) and so on for the other two crimes.

Adv Masutha felt that Clause 4(1)(b) already linked the term genocide, for the purposes of the Chapter, to the schedule and so did not think it necessary for the schedule to cross-reference back to the chapter. He also felt that it would be creating the possibility of genocide having a different meaning by using the phrase "for purposes of this Chapter".

Dr Basset suggested that the problem could be addressed by removing the term "for purposes of this Chapter" from Clause 4 and the schedule.

The Chair said that he could not understand why "for purposes of this Chapter" could not be removed from the Bill because three new crimes were being created in South Africa, and it was not just for purposes of this Act.

Dr Basset agreed to remove the phrase.

The Chair added that in some part it would be necessary to adapt it.

Adv Masutha said that a problem might be created because the definition section of all Bill state that "for purposes of this Act..."

The Chair replied that these were not definition clauses in that sense. He asked Adv Masutha to consider the issue and discuss it with the Committee the following day.

Adv Masutha asked why the three crimes could not be listed in the definition section, with reference to the schedule, so that Clause 4(1)(b) could be removed entirely.

The Chair asked Mr Basset if that would not create fewer complications.

Dr Basset responded that that had been the suggestion in an earlier draft.

The Chair said that it would help to do it that way. The advantage would be that sub (b), which had never looked right, would be removed. He moved on to the definitions themselves as contained in the schedule.

Dr Basset commented that they had tried to keep to the wording of the RS.

The Chair inquired if any of these "actions" included omissions, adding that he did not feel strongly about the issue.

Adv Maqungo felt that it would be appropriate to keep the definitions as they had been taken from existing conventions.

The Chair replied that he did not want to perpetuate the same mistake. An act required something positive to be done. The word "act" may not include omissions, which may be the primary means of committing these crimes.

Mr Mzizi (ANC) queried Clause 4(3), which mentions that if a person has committed a crime, it is deemed to have been committed within the Republic.

The Chair replied that jurisdiction applied to citizens and residents of the Republic, to crimes committed outside the Republic against citizens or residents, and thirdly, against anyone moving through the Republic, regardless of where the crime was committed, so that for example, Pinochet or Milosevic could be arrested should they arrive in the country. This jurisdiction was only in respect of crimes and he asked about the situation pertaining to offences.

Adv Pienaar replied that the situation was addressed in Clause 36, bringing it in line with Clause 4.

Ms Camerer questioned the use of the word "only" at the beginning of Clause 4(6).

The Chair replied that the word should be removed. He commented that the Bill was close to being voted on.

Meeting adjourned.

Appendix 1:
Report of the Portfolio Committee on Justice and Constitutional Development on the
Protocol on the Establishment of the African Court on Human and Peoples' Rights:

The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol on the Establishment of the African Court on Human and Peoples' Rights referred to it, recommends that the House, in terms of section 231(2) of the Constitution, approve the said Protocol.

The Committee is further of the opinion:

(a) That if adopted the Protocol will result in a dual system of protection of human rights. One in terms of the Constitution and the other in terms of the African Charter on Human and People's Rights.

(b) That from a simplistic literal reading of the Protocol there is a potential conflict between section 167(3) of the Constitution and Articles 28(2) and 30 of the Protocol.

(c) That from a practical point of view the possibility of a conflict actually happening is just nil.

(d) That it will not be possible to appeal on human rights matters from the Constitutional Court to the African Court or from the African Court to the Constitutional Court.

The Committee also noted that:

(a) In terms of section 1 67(3)(a) of the Constitution the Constitutional Court is the highest court in all constitutional matters. The jurisdiction of the African Court on the other hand shall in terms of Article 3(1) of the Protocol extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant Human Rights instrument notified by the States concerned.

(b) In terms of Article 7 of the Protocol the African Court shall only apply the provisions of the African Charter and any other relevant human rights instruments ratified by the States concerned.

(c) In terms of article 50 of the African Charter the African Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.

(d) That in terms of section 231(4) of the Constitution international agreements only become law in the Republic when it is enacted into law by national legislation.

Appendix 2:
Report of the Portfolio Committee on Justice and Constitutional Development on the
International Criminal Court Bill [B42-2001] (National Assembly - sec 75) dated 23
May 2002:

The Portfolio Committee on Justice and Constitutional Development having considered the subject of the International Criminal Court Bill [B42-2001] (National Assembly -sec 75) referred to it and classified h\ the Joint Tagging Mechanism as a section 75 Bill with amendments [B42A - 2001], and endorses the classification of the Bill as a Section 75 Bill.

The Committee wishes to report further. as follows:

Clause 4 of the International Criminal Court Bill deals with the jurisdiction of South African courts in respect of the crimes of genocide. crimes against humanity and war crimes which are created in the proposed legislation. Clause 4(3) more specifically sets out the circumstances in which the South African courts will have jurisdiction to hear cases against persons who are alleged to have committed one of the Crimes in question if the crimes are alleged to have been committed outside the territory of the Republic, namely-
if the perpetrator is a South African citizen;
if the perpetrator is not a South African citizen but ordinarily resident in the Republic;
if the perpetrator is present in the Republic after the commission of the crime; and
if the perpetrator has committed a crime against a South African citizen or against a person who is ordinarily resident in the Republic.

The approach adopted in the by giving South African courts extended jurisdiction to deal with crimes which were committed outside the territory of the Republic is similar to the Canadian legislation dealing with the International Criminal Court.

It is understood that Belgium is the only country which, to date, has gone even beyond what South Africa and Canada have clone in respect of jurisdiction, namely by giving the Belgian courts universal jurisdiction to deal with prosecutions instituted against persons who are alleged to have committed one of the above crimes. This, in effect, means that the Belgian courts ca deal with cases in which the crimes in question have been committed by any person anywhere in the world.

The Committee expressed the view that the possibility of giving the South African courts universal jurisdiction to deal with the prosecutions under discussion, should be explored. It consequently requested the Departments of Justice and Constitutional Development and Foreign Affairs to-
(i) undertake the necessary research in this regard, taking all the implications of such an approach into consideration, particularly those of a financial nature and the difficulties which may arise as a result of competing requests from different countries; and
(ii) report back to the Committee within six months after the adoption of this report.

Report to he considered.

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