Heath Commission; International Criminal Court: briefing

JUSTICE PORTFOLIO COMMITTEE
15 May 1998
HEATH COMMISSION; INTERNATIONAL CRIMINAL COURT: BRIEFING

Documents handed out:
Heath Special Investigating Unit 1998 Annual Report (available online next week)

HEATH COMMISSION
Judge Heath outlined issues and problems experienced by the Heath Commission as outlined in the Annual Report.

Questions by committee members:
Jana (ANC) : What about the roles of banks?
Heath: No criminal charges are being laid against banks. If they realise something is wrong they look into it. A bigger problem is the fact that cases are simply not prosecuted.

Hofmeyr (ANC): Are the former homelands the big problem areas? Can't the commission compile the dockets themselves and then send them to the Attorney-General? If not, should that function not be created?

Heath: The Commission can assist them as the Office of the Attorney-General is short staffed, but then it is possible that the commission could then be overloaded with this kind of request. It is a very big problem.

The Chairperson suggested that some of the cases be handed over to the chairperson and he would inquire quietly into the matter and find out why they are not being prosecuted. (It is not clear whether Judge Heath accepted this offer.)

Hofmeyr: What is being investigated at the moment and does it include private schemes? Heath: Did not want go into any specifics as these matters are very sensitive

O'Malley (IFP) Why are the numbers on the national level of investigations so low?
Heath: The provinces are usually the ones who bring a case to the attention of the commission. really know why the politicians are not bringing more case to his attention.

Camerer (NP) objected that the committee had not had the report before the time and as a result could not fully debate the issue of corruption to make certain suggestions to the Minister.

The chairperson made the following remarks:
- there is a need to review the process which the Commission is following
- the chair will take up the matter of unprosecuted cases with the Minister of Justice & Finance
- the fact that cheques are simply lying around is very disturbing
- envisages this kind of report at least once a year

The chairperson saw the main problems at this stage as:
- a lack of money
- the process by which the Commission operates is weak

Judge Heath said that the problems mentioned as well as those in the report will form the basis of amendments proposed to the Minister.

INTERNATIONAL CRIMINAL COURT
Prof Rwelamira reported back on the progress made with the statutes pertaining to the International Criminal Court (ICC).The next round of discussions will be held in Rome on June 15, 1998.

He did not go into the specifics of the statutes as they are very technical and he only had one copy available of the draft statute. He then proceeded to discuss the processes involved and highlighted a couple of controversial issues.

The idea of an ICC came from the Nuremberg trials. In 1994 the International Law Commission which is a United Nations body, began discussions on a draft of the ICC. In 1995 an ad hoc committee was established to take the matter further and in 1996 the General Assembly of the UN started dealing with this complex issue.

SA started taking part in the discussions in 1996. In 1997 attempts were made to try and define the crimes that the ICC would hear. Another issues that was hotly debated was the question of national jurisdictions of the individual countries. It was decided that the ICC would only intervene where a country is unwilling or unable to do something.

The ICC would have jurisdiction over the following crimes :
1. Genocide
2. Crimes against Humanity
3. War Crimes (broadly interpreted to include that which is against international law)
4. Aggression (such as terrorism)

Some countries wanted to include drugs in the definition, but there was no consensus.

The ICC will not displace national jurisdictions. It will give the national Jurisdiction the chance to handle things, but it could intervene as in the case of Somalia where everything collapsed.

There are two views on the question of how far the ICC's jurisdiction will go:
- before they assume jurisdiction over a matter, the state must give consent.
- if the state ratifies this statute it indicates automatic consentIt was contended that the court should have the power to decide whether it will hear a case.

Should the court have inherent jurisdiction or should the state give it's consent? The above mentioned two views prevail.

What kind of procedure should it follow?
Should the state lodge a complaint or should there be a prosecutor. This is also very controversial. Should this prosecutor be able to lodge a complaint on his own or would he need state consent? Or should the Security Council of the UN lodge these complaints? It seems the Security Council is of the opinion that the prosecutor should have some of these special powers.

The USA wanted certain quartettes about the constitution of the ICC, where the prosecutor would have ex officio powers and operate similarly to that of the US Grand Juries.

The rules of procedure and evidence is also being looked at.

The question of access to sensitive information was raised by the Dept. of Defence of the SA Delegation and the question of national security. Should the court decide? Three views:
- no, the state should - the court should if the state raises the issue
- the state should provide summaries of the sensitive information
otherwise the prosecutor should decide
SA feels that the court should decide, because the offenders are usually in power and to leave the matter in the hands of their government is stupid.

War crimes are defined broadly. The question was raised as to whether weapons should be included, such as nuclear weapons etc., as well as meatheads of warfare - weapons which don't discriminate and those that does. It is still under discussion.

Financing the court was also discussed. Two views:
- as a body of the UN it should be funded by the UN
- parties to the case should pay, as well as voluntary contributions.
The problem with the second view is the fact that a lot of the countries who will ratify this statute are very poor and unable to pay.

The structure of the ICC will be the normal three found in all courts.

Adoption of the statute might have constitutional implications for SA - rights of accused persons and rights of witnesses. Extradition treaties will also have to be reviewed. Extradition of prisoners to a court and not a particular country is a problem.

Questions by committee members:
Jana (ANC) : Does everybody except the idea of an ICC?
Prof Rwelamira: Initially there was some resistance from some countries. Today it is rather a question of what kind of court it should be and what powers it should have.

Chairperson: Will there be minimum benchmarks to which countries ratifying this statute will have to adhere as this concept of the ICC will not fit into every legal system.
Prof Rwelamira: It is uncertain at this stage.

Prof Rwelamira concluded by saying that the ICC is different to the International Court of Justice in The Hague, which is a civil court. Only states can lodge complaints in the ICJ. It seems that, at this stage, it is envisaged that the ICC should hear cases lodged by a wider variety of parties.

End of the meeting.

ATTENDED BY:
DE LANGE - CHAIR
HOFMEYER ANC
JANA ANC
UNIDENTIFIED ANC MEMBER
CAMERER NP
O'MALLEY (IFP)