Complementarity and Universal Jurisdiction: South Africa's ICC Act and the Domestic Investigation of Extraterritorial International Crimes

S. Casey-Maslen (ed.), The War Report 2012 (Oxford: Oxford University Press, 2013), pp. 439-454

16 Pages Posted: 19 May 2013 Last revised: 25 Dec 2013

See all articles by Manuel J. Ventura

Manuel J. Ventura

Western Sydney University, School of Law; The Peace and Justice Initiative

Date Written: May 1, 2013

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.

Keywords: Complementarity, universal jurisdiction, South Africa, International Criminal Court, Rome Statute, international crimes, crimes against humanity

JEL Classification: K14, K33, K41, K42

Suggested Citation

Ventura, Manuel J., Complementarity and Universal Jurisdiction: South Africa's ICC Act and the Domestic Investigation of Extraterritorial International Crimes (May 1, 2013). S. Casey-Maslen (ed.), The War Report 2012 (Oxford: Oxford University Press, 2013), pp. 439-454, Available at SSRN: https://ssrn.com/abstract=2266856

Manuel J. Ventura (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

HOME PAGE: http://www.westernsydney.edu.au/staff_profiles/uws_profiles/mr_manuel_ventura

The Peace and Justice Initiative ( email )

The Hague
Netherlands

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