This reality is recognized by the Rome Statute, which in the preamble and Article 1 of the Statute provides that the jurisdiction of the ICC is. CISA: Convention implementing the Schengen Agreement DRC: Democratic Republic of the Congo.
INTRODUCTION AND PROBLEM STATEMENT
- Introduction
- Contextual background
- The complementarity regime of the Rome Statute
- Statement of the problem
- Introduction
- The problem of foreign immunities
- The issue of amnesties granted by foreign countries
- Retrial of cases already tried in foreign countries
- Objectives of the study
- Research methodology
- Framework of the thesis
Does Section 4(2) of the Implementing Act have the same meaning as Article 27(2) of the Rome Statute? It is ultimately the source of the binding force of international law.
CONCEPTUAL AND THEORETICAL FRAMEWORK
Introduction
This study is concerned with the extent to which South African courts acting under the complementarity regime of the Rome Statute can exercise universal jurisdiction over international crimes committed in foreign states. Specifically, the study is about the relationship between the international law doctrine of state sovereignty, the principle of complementarity and the right to universal jurisdiction.
Background and overview on the Rome Statute
- Background
- Early attempts to create an international criminal tribunal after the
- The inter-war period
- The Nuremberg and Tokyo Tribunals after the Second World War
- Adoption of the Genocide Convention and the idea of a permanent
- The ICTY and ICTR
- Establishment of the International Criminal Court
- The relationship between the ICC and the UN
- The Jurisdiction of the ICC
- Subject-matter jurisdiction (or jurisdiction ratione materiae)
- Jurisdiction ratione temporis
- Jurisdiction based on territory, nationality and ad hoc jurisdictions
- Jurisdiction ratione personae
- The “trigger” mechanisms
- Referral by a State Party
- Referral by the Security Council
- The initiation of investigations proprio motu
- The admissibility requirements of the Rome Statute
10 (Control Council Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity December 20, 1945 (Control Council Official Gazette for Germany No. 3, January 31, 1946)), a version somewhat modified Charter of the International Military Tribunal. 135 Instrument of Surrender Annex No. A-2 of the Judgment of the International Military Tribunal for the Far East (1945).
The concept of complementarity
- Introduction
- The complementarity regime of the ICC
- Complementarity and ongoing investigations and prosecutions
- Complementarity and completed trials: the ne bis in idem rule
See also Article 9(2) of the Statute of the ICTY: "The International Court of Justice has primacy over national courts." In addition, a state will be considered incompetent if its domestic law does not permit the prosecution of ICC offenses in its courts. With] the purpose of protecting the person concerned from criminal liability for criminal acts within the jurisdiction of the court; or
As previously stated,359 the supplementary provisions of the Rome Statute reflect a balance between the requirements of international criminal justice and the sovereignty of states.
The doctrine of State sovereignty
- Definition and attributes of State sovereignty
- The historical origins and development of the doctrine of State
- Absolute or Westphalian sovereignty
- Limited State sovereignty
- Sovereignty and jurisdiction
- The concept of jurisdiction
- Legislative jurisdiction in criminal matters
- Executive jurisdiction in criminal matters
- Judicial jurisdiction in criminal matters
Zeidy 2002 Michigan Journal of International Law 870; Blakesley “Extraterritorial Jurisdiction” 5 and Council of the European Union “The AU-EU Expert Report” para 12. Extraterritorial Jurisdiction” 5; Lee 1999 Virginia Journal of International Law 432; Council of the European Union "The AU-EU Expert Report" para 12 and Cryer International Criminal Law 47. Section 4(3) of the Implementation Act provides that: "[..] any person who intends a crime in subsection (I) commits ) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if- (a) that person is a South African citizen”.
478 Dugard International Law 153; Brownlie's principles 304; Du Toit et al Comment 16-13; Blakesley “Extraterritorial Jurisdiction” 5 in World of the European Union “The AU-EU Expert Report” paragraph 12.
The concept of universal jurisdiction
- Definition, rationale and examples of universal jurisdiction
- The crimes that are subject to universal jurisdiction
- Universal jurisdiction, a “right”, not a “duty”
- Delegated jurisdiction is not universal jurisdiction
- Absolute versus conditional universal jurisdiction
Other countries that have exercised universal jurisdiction over perpetrators of the Rwandan genocide are Switzerland and Canada. A summary of the case as well as the link to the original judgment (in Germany) is available at A summary of the case as well as a link to the judgment (in Germany) is available at.
They believe that this crime is not an international crime in the strict sense of the word and that, consequently, it is not subject to the universal jurisdiction of all countries.
Conclusion
In the third judgment of the House of Lords (R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No All ER 97), the first judgment was upheld. This Act provides that representatives of foreign countries are immune from the criminal (and civil) jurisdiction of South African courts" in accordance with the rules of customary international law".902 In accordance with the provisions of the Diplomatic Immunities and Privileges Act, this immunity must therefore be granted to officials of foreign countries accused of international crimes before South African courts.
A duty on states to prosecute international crimes can arise from one of two main sources of international law: treaty and custom.
IMMUNITY
Introduction
Nevertheless, under the complementarity regime of the Rome Statute, the jurisdiction of the ICC is subordinate to the jurisdiction of national courts.563 States parties have that jurisdiction. Most commentators on the Implementation Act have interpreted this provision as waiving the immunity (both job and personal) of foreign officials in South African courts.567 Dugard and Abraham568 argue that section 4(2)(a)(i) of the Implementation law represents a choice by the legislature not to follow the “unfortunate”. International Criminal Courts” 211, where the author says that in terms of Article 4(2)(a) of the Implementation Act, South African courts are accorded “the same power to 'trump' the immunities usually attached to government officials as the International Criminal Court is under Article 27 of the Rome Statute”.
In terms of the law, South African courts, acting under the complementarity system, are given the same power to "trump" the immunities usually accorded to government officials as the ICC under Article 27 of the Statute.
Origins and development of the notion of State immunity
- From sovereign immunity to State immunity
- From absolute to restrictive immunity
- The 2004 UN Convention on the Jurisdictional Immunities of States
To give a proper background to this discussion, it is necessary to first trace the history and justifications of the doctrine of State Immunity. State,608 or delictual acts causing damage committed on the territory of the forum state.609. This Convention also recognizes the immunity of "representatives of the State acting in that capacity".624 The Convention unequivocally recognizes the principle of immunity ratione materiae for acts performed in an official capacity,625 and determines that it is.
However, since the immunities of state officials derive from the immunity of states, it is important to first look at the grounds for the immunity of states as opposed to that of their officials.
Justifications of State immunity
- Immunity and “non-intervention” in the internal affairs of a State
- International comity and good relations between States
- Immunity and the dignity of States
Historically, the concept of state immunity developed as a rule of courtesy: "Do unto others as you would have them do unto you". The doctrine of immunity of a State from the jurisdiction of foreign States is also based on the principle of state dignity.646 This is the idea that it is incompatible with a state's sovereignty and dignity that it is subject to another state's jurisdiction.647. See also Bantekas and Nash International Criminal Law 165: “[W]hile designed to improve interstate relations and limit the reach of the receiving State's judicial and executive machinery, the concept of state immunity is not based on cordiality.
Therefore, the rulings of state courts, international tribunals and state law do not support the conclusion that there is a general state practice that provides for an exception to state immunity for torture committed outside the forum state.
Immunities of State officials from the jurisdiction of other States
- Immunity ratione materiae or functional immunity
- Definition
- Immunity ratione materiae and international crimes
- Immunity ratione personae or personal immunity
- Definition
- Immunity ratione personae and international crimes
Far from being a function of a state, committing international crimes is the opposite of any function of the state. From the perpetrator's perspective, the waiver of immunity ratione materiae in serious crimes is also justified in this area under international law. Aristide pleaded that as recognized head of state of the Republic of Haiti, he was personally immune from lawsuits in the courts of the United States.
Therefore, in the event of immunity being revoked, the case can be decided by applying the law in the usual way.
Immunities of foreign States' officials under the Implementation
- The provision of section 4(2)(a)(i) of the Implementation Act
- The concept of “defence to a crime”
- Foreign State officials who qualify for immunity ratione personae
- The head of State
- The head of government
- The minister of foreign affairs
- Other ministers
- Officials on special missions
- Immunity ratione personae under the 1961 and 1963 Vienna
- Immunity ratione personae of foreign officials on private visits
Official statements by the South African government also support the interpretation of Article 4(2)(a)(i), which does not waive the immunity ratione personae of foreign officials, even when charged with international crimes. To answer these questions, reference must be made to the provisions of the Diplomatic Immunities and Privileges Act and the rules established by customary international law regarding the immunities of officials of foreign states from the jurisdiction of foreign courts. Section 3(2) of the Diplomatic Immunities and Privileges Act provides that this treaty applies in South Africa.
Therefore, the reasoning of the ICJ in the case of Arrest Warrant993 that heads of government, like heads of state, also enjoy immunity ratione personae in private visits abroad, is quite appropriate.
Conclusion
Some of the perpetrators of the alleged crimes against humanity and torture in Sudan1103 and. 1106 Dugard "Possible Conflicts with Truth Commissions" 697: "A necessary consequence of the argument that there is a duty to prosecute is that international law prohibits the granting of amnesty in cases of violations of international crimes". In light of the above considerations, a determination of whether states that are not parties to the Rome Statute have any obligation to prosecute international crimes must be made on a case-by-case basis.
For states party to the Genocide Convention, granting amnesty to those responsible for genocide would constitute a violation of the Genocide Convention.
AMNESTY
Introduction
In such a case, failure to prosecute and punish persons responsible for committing crimes defined in the treaty would constitute a breach of the state's treaty obligations." In light of the above, it must be concluded that amnesty is contrary to the States Parties. This conclusion is also supported by the provisions of Article 17(1)(a) of the Rome Statute, discussed below.
The implication of the above argument is that South African courts can try perpetrators of international crimes who have been the subject of an amnesty law in a foreign state that is party to the Rome Statute, without violating the sovereignty of that state.
Policy arguments in favour of foreign amnesties
- Amnesty for ending a rebellion
- Algeria
- Uganda
- Amnesty for maintaining peace and stability after a fragile democratic
- Argentina
- Uruguay
- Amnesty for regime change
- South Africa
- Haiti
Policy arguments against foreign amnesties
These arguments of necessity, however, relate to political stability within the nation, while the effects of amnesty and resulting impunity may transcend the borders of the country directly concerned.1094 Although amnesty may ensure peace and stability within States, such amnesties may create an impression in foreign countries that that people can commit atrocities and manage to escape criminal responsibility. This weakens the deterrent effect of the criminal law and encourages future atrocities.1098 Some believe that the failure to prosecute the Turkish perpetrators of the Armenian genocide prompted Hitler to undertake the Holocaust. 1098 Orentlicher 1991 Yale Law Journal 2542: “If the law is not available to punish the widespread brutality of the recent past, what lesson can we offer for the future.
However, this raises a legal question: would such prosecutions in South African courts, in disregard of a foreign amnesty law, possibly violate the sovereignty of the country in which the crimes were committed and which has decided to solve its problems through amnesty rather than by punishment.
Legal arguments against foreign amnesties
- Amnesty for gross human rights violations is contrary to States’
- Amnesty and States Parties to the Rome Statute
- Amnesty and States that are not party to the Rome Statute
The first argument advanced in favor of the South African courts' right to disregard foreign amnesties in cases of international crimes is that such amnesties are contrary to international law because they violate the States' duty to prosecute perpetrators of international crimes and to punish.1106 . Nevertheless, commentators on the ICC have argued that a number of the provisions of the Rome Statute imply that the Statute precludes national amnesty.1114 These provisions are discussed below. The Vienna Convention on the Law of Treaties also stipulates that treaties must be performed in good faith.1121 In light of this provision and the overall aim of the Rome Statute (to end impunity for gross human rights violations), an amnesty is accepted.
First, only the 1948 Genocide Convention and the 1949 Geneva Conventions contain explicit provisions requiring member states to prosecute the perpetrators of the crimes of genocide and the war crimes identified as such.
The principle of universal jurisdiction entitles States to trump
Foreign amnesties and prosecutorial discretion
Proposed guidelines for the National Director
Conclusion
RETRIAL OF CASES ALREADY TRIED IN FOREIGN COUNTRIES
Introduction
The rationales of the ne bis in idem rule
- Accused-centred rationales
- Protection of the accused against “abusive” and “ill intentioned”
- Protection of the accused against the anxiety and stress arising from
- Protecting the accused against a wrong conviction
- The criminal justice system-centred rationales
- Encouraging procedural efficiency
- Conservation of scarce prosecutorial and judicial resources
- Respect for the finality and conclusiveness of judicial decisions
