South Africa’s International Criminal Court Act: Countering genocide, war crimes and crimes against humanity

This research paper examines South Africa's domestication of the Rome Statute through the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act). It analyzes how the Act enables the national prosecution of genocide, war crimes, and crimes against humanity, the establishment of the Priority Crimes Litigation Unit, and the legal mechanisms for cooperating with the International Criminal Court (ICC).

• South Africa enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) on 16 August 2002 to fulfill its obligations under the Rome Statute's complementarity scheme. Before this Act, South Africa lacked domestic legislation regarding war crimes or crimes against humanity and had never conducted domestic prosecutions for international crimes.
• The ICC Act incorporates the definitions of genocide, crimes against humanity, and war crimes directly into South African law via a schedule that mirrors articles 6, 7, and 8 of the ICC Statute. However, the Act does not specifically refer to article 9 of the Rome Statute regarding the Elements of Crimes.
• The ICC Act establishes broad jurisdictional bases for South African courts, including territoriality and nationality. Notably, section 4(3)(c) provides for 'conditional universal jurisdiction,' allowing the prosecution of individuals who commit core crimes outside South Africa if they are subsequently present in the territory of the Republic.
• The author argues that the National Prosecuting Authority (NPA) should adopt a threshold of 'anticipated presence' to initiate investigations and issue arrest warrants before a suspect physically enters South Africa. This approach is intended to avoid practical hurdles and is supported by examples from the United Kingdom and Germany.
• To manage these cases, a Priority Crimes Litigation Unit (PCLU) was established within the NPA, headed by a special director of public prosecutions appointed via Government Gazette No 24876 on 23 May 2003. The PCLU is specifically tasked with the investigation and prosecution of crimes defined in the ICC Act.
• Prosecutions under the ICC Act require the consent of the National Director of Public Prosecutions (NDPP). However, this consent is not required to open an investigation, charge a person, or execute an arrest.
• The ICC Act provides a framework for cooperation with the ICC, including the arrest and surrender of suspects. Surrender to the ICC is distinguished from traditional extradition as it does not require the 'double criminality' rule or a prima facie case, but rather requires a magistrate to be satisfied that the person is the correct individual, was arrested legally, and had their Bill of Rights respected.
• South Africa can assist the ICC by allowing convicted prisoners to serve sentences in domestic penal institutions, subject to approval by parliament and the cabinet. The ICC Act also allows for the registration and execution of ICC-imposed fines and compensation orders as civil judgments in South African courts.
• The ICC Act explicitly removes official immunities for heads of state, government members, or parliamentarians, ensuring that such status is neither a defense nor a ground for sentence reduction for core international crimes.

APA

du Plessis, M. (2008). South Africa’s International Criminal Court Act: Countering genocide, war crimes and crimes against humanity. Institute for Security Studies. https://issafrica.s3.amazonaws.com/site/uploads/Paper172.pdf

Chicago

du Plessis, Max. South Africa’s International Criminal Court Act: Countering genocide, war crimes and crimes against humanity. Institute for Security Studies, 2008. https://issafrica.s3.amazonaws.com/site/uploads/Paper172.pdf.

Wikipedia

{{cite report |last1=du Plessis |first1=Max |title=South Africa’s International Criminal Court Act: Countering genocide, war crimes and crimes against humanity |publisher=Institute for Security Studies |date=November 2008 |url=https://issafrica.s3.amazonaws.com/site/uploads/Paper172.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{duplessis2008south, author = {du Plessis, Max}, title = {{South Africa’s International Criminal Court Act: Countering genocide, war crimes and crimes against humanity}}, institution = {Institute for Security Studies}, year = {2008}, month = nov, url = {https://issafrica.s3.amazonaws.com/site/uploads/Paper172.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }