Complementarity and universal jurisdiction : South Africa’s ICC Act and the domestic investigation of extraterritorial international crimes

    Research output: Chapter in Book / Conference PaperChapter

    Abstract

    In Southern African Litigation Centre and Another v. National Director of Public Prosecution and Others the High Court of South Africa held that South African authorities were legally obliged to investigate allegations of crimes against humanity committed in Zimbabwe by Zimbabweans against their own nationals. This was based on the strength of domestic law, in particular the universal jurisdiction provision of Section 4(3)(c) of the Implementation of the Rome Statute of the International Criminal Court Act (‘ICC Act’), together with South Africa’s international legal obligations as a state party to the International Criminal Court (‘ICC’) and the principle of complementarity. This decision has likely been the catalyst for the opening of other investigations by South African authorities of extraterritorial international crimes allegedly committed in Madagascar and Zimbabwe. This chapter takes a critical approach to the invocation of complementarity in a universal jurisdiction context. It argues that, in cases such as the present, complementarity can only be invoked when a state’s domestic jurisdiction over international crimes matches those of the ICC. That is, when committed by the nationals of an ICC state party or on their territory. To hold otherwise, as the High Court did in the Zimbabwe case (a state which is not a party to the ICC) invites results that completely transforms the traditional understanding of complementarity beyond that intended by its creators. Nevertheless, South Africa may still have an international (or domestic) obligation to investigate international crimes pursuant to its universal jurisdiction, but it cannot be based on the Rome Statute or complementarity.
    Original languageEnglish
    Title of host publicationThe War Report : 2012
    EditorsStuart Casey-Maslen
    Place of PublicationU.K.
    PublisherOxford University Press
    Pages439-454
    Number of pages16
    ISBN (Print)9780199689088
    Publication statusPublished - 2013

    Keywords

    • complementarity (international law)
    • universal jurisdiction
    • International Criminal Court
    • international crimes
    • crimes against humanity

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