(Bill as introduced into Parliament incorporating amendments of Portfolio Committee at its meeting of 24 May 2002)
REPUBLIC OF SOUTH AFRICA
IMPLEMENTATION OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT BILL
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(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No. 22456 of 4 July 2001)(The English text is the official text of the Bill)
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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B42 - 2001][B -2002]
BILL
To provide for the [incorporation of the Rome Statute of the International Criminal Court into South African law;] the implementation [and enforcement] of the Rome Statute of the International Criminal Court in South Africa; cooperation with the International Criminal Court; the arrest of persons and their surrender to the International Criminal Court; and to provide for matters connected therewith.
PREAMBLE
[RECOGNIZING that millions of people have been victims of crimes against humanity and that such crimes threaten the peace, security and well-being of the world;
DETERMINED to put an end to impunity for the perpetrators of these crimes and to guarantee lasting respect for the enforcement of international justice;]
MINDFUL that –
* throughout the history of human-kind, millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law;
* the Republic of South Africa, with its own history of atrocities, has, since 1994, become an integral and accepted member of the community of nations[/global village] and is committed to –
* bringing [to justice] persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its [undertaking] international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court [and in line with the principle of complementarity as contemplated in the Statute], or [otherwise]alternatively in the case where in the event of the National Director of Public Prosecutions declines/is unwilling or unable national prosecuting authority declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court, created by and functioning in terms of the said Statute;
* carrying out its other obligations in terms of the said Statute;
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—
CONTENTS
Section
PART 1
DEFINITIONS, ENACTMENT OF STATUTE AS PART OF SOUTH AFRICAN LAW AND OBJECTS OF ACT
Definitions 1
Enactment of Statute as part of South African law 2
Objects of Act 3
PART 2
APPLICATION OF ACT IN REPUBLIC AND JURISDICTION OF COURT
Application of Act and Statute. . . . ...........................................................................……… 4
Seat of Court in Republic 5
Privileges and immunities 6
Rights and privileges of witnesses in proceedings before Court 7
PART 3
ARREST OF PERSONS AND THEIR SURRENDER TO COURT
Endorsement of warrants of arrest 8
Provisional warrants of arrest 9
Proceedings before competent court after arrest for purposes of surrender 10
Removal of persons surrendered 11
Entry and passage of persons in custody through the Republic 12
Discharge of persons not surrendered 13
PART 4
COOPERATION WITH AND JUDICIAL ASSISTANCE TO COURT
Areas of cooperation and judicial assistance 14
Request for assistance in obtaining evidence 15
Examination of witnesses 16
Rights and privileges of witnesses before magistrate 17
Offences by witnesses 18
Attendance of witnesses in proceedings before Court 19
Transfer of prisoner to give evidence or to assist in investigations 20
Service of process and documents 21
Registration of restraint order 22
Effect of registration of restraint order 23
Setting aside of registration of restraint order 24
Registration of sentence or compensatory order 25
Effect of registration of sentence or compensatory order 26
Registration of confiscation order 27
Effect of registration of confiscation order 28
Setting aside of registration of confiscation order 29
Entry, search and seizure 30
Enforcement of sentence of imprisonment .. . . . . . . . . . . . . . . . . . . . . . . . . 31
PART 5
MISCELLANEOUS
President may enter into agreements 32
Admissibility of documents 33
Act not to limit provision of other assistance 34
Conversion of currencies 35
Offences against administration of justice in terms of Statute. . . . . .. . . . . ……. 36
Regulations 37
Amendment of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................38
Short title and commencement 39
Schedule 1
Schedule 2
Annexure
[PART] CHAPTER 1
DEFINITIONS, [ENACTMENT OF STATUTE AS PART OF SOUTH AFRICAN LAW AND] OBJECTS AND INTERPRETATION OF ACT
Definitions
1. In this Act, unless the context indicates otherwise—
(i) "Central Authority" means the Director-General [: Justice and Constitutional Development] responsible for the administration of justice;
(ii) "confiscation order" means any order issued by the Court aimed at recovering the proceeds of any crime or an offence within the jurisdiction of the Court or the value of such proceeds;
() "conventional international law" means any convention or treaty or other international agreement that is in force in and binding on the Republic;
(iii) "Court" means the International Criminal Court established by Article 1 of the Statute;
(iv) "crime" means any crime [referred to in Article 5 of the Statute] contemplated in section 4[(2)];
(iv) "crime" means –
(a) the crime of genocide, being any conduct referred to in Part 1 of Schedule 1;
(b) a crime against humanity, being any conduct referred to in Part 2 of Schedule 1; or
(c) a war crime, being any conduct referred to in Part 3 of Schedule 1;
() "High Court" means any one of the High Courts contemplated in section 166(c) of the Constitution;
(v) "magistrate" means a magistrate defined in section 1 of the Magistrates Act, 1993 (Act No. 90 of 1993);
[(vi) "Minister" means the Minister for Justice and Constitutional Development;]
(vii) "National Director" means the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution [of the Republic of South Africa, 1996 (Act No. 108 of 1996)];
[(viii) "offence" means any offence against the administration of justice as contemplated in Article 70 of the Statute;]
(ix) "prescribed" means prescribed by regulation in terms of this Act;
(x) "prisoner" means any person who is being detained in custody within or outside
any prison—
(a) to serve a sentence; or
(b) pending his or her trial or sentence for an offence committed under South African domestic law;
(xi) "property" means money or any other movable, immovable, corporeal or incorporeal thing and includes any interest thereon and all proceeds thereof;
(xii) "regulation" means a regulation made under this Act;
(xiii) "restraint order" means any order issued by the Court in respect of a crime or an offence within the jurisdiction of the Court, aimed at restraining any person from dealing with any property;
(xiv) "Rules" means the Rules of Procedure and Evidence referred to in Article 51 of the Statute;
() "the Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
(xv) "the Statute" means the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 and ratified by the Republic on 10 November 2000, [as set out in Schedule 1] a copy of the English text of which is attached in the Annexure for information;
(xvi) "this Act" includes the regulations;
[Enactment of Statute as part of South African law
2. (1) The Statute applies in the Republic, subject to the provisions of this Act.
(2) The Minister may from time to time by notice in the Gazette amend Schedule 1 to reflect any changes made to the Statute if those changes are binding on the Republic in terms of section 231 of the Constitution of the Republic of South Africa,1996 (Act No. 108 of 1996)]
Applicable law
2. In addition to the Constitution and the law, any competent court in the Republic hearing any matter arising from the application of this Act must also consider and, where, appropriate, may also apply –
(a) conventional international law, and in particular the Statute;
(b) customary international law; and
(c) comparable foreign law.
Objects of Act
3. The objects of this Act are to—
(a) [make the Statute part of South African domestic law and to] create a framework to ensure that the Statute is effectively implemented in the Republic;
(b) ensure that anything done in terms of this Act conforms with the obligations
of the Republic in terms of the Statute;
[(c) enable the Republic to cooperate with the Court in the investigation and prosecution of persons accused of having committed crimes or offences referred to in the Statute, and in particular to—
(i) enable the Court to make requests for assistance;
(ii) provide mechanisms for the surrender to the Court of persons accused of having committed a crime referred to in Article 5 of the Statute;
(iii) enable the Court to sit in the Republic;
(iv) enforce any sentence imposed or order made by the Court; ]
[(d](c) enable, (in the first instance)[any court referred to in section 166(c) to (e) of the Constitution or any military court] the Republic's national prosecuting authority to prosecute and the High Courts of the Republic in the first instance, as far as possible and in accordance with the principle of complementarity as contemplated in Article 1 of the Statute, to [try and punish] [offenders] hear adjudicate in cases against persons accused of having[who are alleged to have] committed [crimes or offences referred to in the Statute] a crime; and
(d) where the National Director declines/is unwilling or unable/declines in the event of the national prosecuting authority declining or being unable to prosecute a person as contemplated in paragraph (c), enable the Republic to cooperate with the Court in the investigation and prosecution of persons accused of having committed crimes or offences referred to in the Statute, and in particular to-
(i) enable the Court to make requests for assistance;
(ii) provide mechanisms for the surrender to the Court of persons accused of having committed a crime referred to in the Statute;
(iii) enable the Court to sit in the Republic; and
(iv) enforce any sentence imposed or order made by the Court.
[PART] CHAPTER 2
[APPLICATION OF ACT IN REPUBLIC AND] JURISDICTION OF SOUTH AFRICAN COURTS IN RESPECT OF CRIMES AND INSTITUTION OF PROSECUTIONS IN SOUTH AFRICAN COURTS IN RESPECT OF CRIMES
[Application of Act and Statute] Jurisdiction of South African courts in respect of crimes
4. (1) (a) Despite anything to the contrary in [this Act or] any other law of the Republic [and subject to paragraph (c)], any person who commits [a] genocide, a crime against humanity or a war crime, contemplated in this section [Article 5, read with Articles 6, 7, 8 and 9 of the Statute] , is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.
(b) For purposes of this Chapter-
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