Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section E. Cooperation with international criminal tribunals
South Africa’s LOAC Teaching Manual (2008) states:
The implementation of the [R]ome [S]tatute of the [I]nternational [C]riminal [C]ourt [A]ct (act no 27 of 2002)
The act places a duty on the rsa [Republic of South Africa] to co-operate with the icc [International Criminal Court] and provides for procedures for arresting accused persons, extradition proceedings and enforcement of penalties, compensatory and confiscation orders of the icc.
South Africa’s ICC Act (2002) provides:
The relevant competent authorities in the Republic must, subject to the domestic law of the Republic and the Statute, cooperate with, and render assistance to, the [International Criminal] Court in relation to investigations and prosecutions in the following areas:
(a) The identification and whereabouts of persons or the location of items;
(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) the questioning of any person being investigated or prosecuted;
(d) the service of documents, including judicial documents;
(e) facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) the temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other assistance;
(g) the examination of places or sites, including the exhumation and examination of grave sites;
(h) the execution of searches and seizures;
(i) the provision of records and documents, including official records and documents;
(j) the protection of victims and witnesses and the preservation of evidence;
(k) the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bone fide third parties; and
(l) any other type of assistance which is not prohibited by law, with the view to facilitating the investigation.
In 2009, the Director-General of South Africa’s Department of International Relations and Cooperation stated:
South Africa is [a] State Party of the  Rome Statute of the International Criminal Court and is therefore obliged to cooperate with the court in its investigation and prosecution of crimes within the jurisdiction of the court (Article 86) and hence also in the execution of arrest warrants. It is worth noting that Article 87(7) of the Statute provides that, when a state party fails to comply with a request to cooperate, the court may make a finding to that effect and refer the matter to the Assembly of States Parties, or in the case of a United Nations Security Council (UNSC) referral to the UNSC.
Article 27 of the Rome Statute provides that the official capacity as head of state or government of an accused provides no exemption from criminal responsibility. Furthermore, Section 4(1) of the South African implementation of the Rome Statute of the International Criminal Court Act also ousts the applicability of other domestic laws in respect of an accused, with the result that the immunity from prosecution that President El Bashir would normally have enjoyed in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), is not [to] be applicable.
An international arrest warrant for President El Bashir has been received and endorsed by a magistrate. This means that if President El Bashir arrives on South African territory, he will be liable for arrest.
The AU [African Union] decision aims to obligate AU Member States not to cooperate with the ICC with regard to the arrest and surrender of African indicted personalities. In this respect, the decision aims to cover persons indicted with regard to all the situations in Africa, namely Sudan, the Democratic Republic of Congo[,] Northern Uganda and the Central African Republic.
Article 98, which is referred to in the decision, creates two situations which aims to stop the court from proceeding with a request for surrender and reads as follows:
The court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state of diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third State for the waiver of the immunity.
The court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that state to the court, unless the court can first obtain the cooperation of a sending State for the giving of consent for the surrender.
The situation foreseen in Article 98(1) will not be applicable in South Africa as Section 4(1) of the Implementation of the Rome Statute of the International Criminal Court Act, ousts the applicability of immunities conferred by the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001) and President El Bashir (or any other “African indicted personality”) will not be able to enjoy immunity against the provisions in the Act on South African territory.
It appears that the AU decision is based on a decision by the International Court of Justice that held that the indictment of a Foreign Minister of the Democratic Republic of Congo by Belgium in terms of its domestic law, was in violation of Belgium’s obligations in terms of the international law applicable to immunities (DRC v Belgium (Yerodia Case), ICJ, 2006. It is submitted that due to the position in South African domestic law as set out above, the finding in this case will not be applicable. In any case, it was also held in the Yerodia case that an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, when such courts have jurisdiction.
Article 98(2) aims to prevent a conflict between an international agreement to which a State was party to before acceding to the Rome Statute or before a request for arrest was made, which provided for a situation where the consent of another state is required before a person of that state can be surrendered to the court and the provisions of the Rome Statute. It appears, also from paragraph ten of the decision, not to be applicable to South Africa because South Africa has not concluded an agreement of that nature with the Sudan or any state.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, including South Africa, the permanent representative of Canada stated:
Holding perpetrators to account [for] grave violations against children continues to be rare as indicated by the Secretary-General in his annual report, and yet is a crucial element towards protecting children’s rights. The Friends encourage Member States to strengthen national accountability mechanisms and judicial capacities, including by developing child protection legislations that criminalize all grave violations against children. In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role.