Permanent Mission of South Africa

to the United Nations

Statement

By the South African Representative

Mr. Albert Hoffmann

Sixth Committee

54th Session United Nations General Assembly

Agenda Item: 158

Establishment of an International Criminal Court

21 October 1999

Mr Chairman

My delegation fully supports the statement made by Mozambique on behalf of the Southern African Development Community.

As we now prepare for the next meeting of the Preparatory Commission to be held from 29 November to 17 December 1999 we remain conscious of the enormous amount of work that still needs to be completed before the deadline date of 30 June 2000. To this end, my delegation wishes to impress upon the General Assembly,

when considering the resolution on the Establishment of an International Criminal Court, to request the Secretary-General to convene such further meetings of the Preparatory Commission in the year 2000 in order to carry out the mandate of resolution F of the Final Act of the Rome Conference.

South Africa and indeed the delegations from the Southern African Development Community (SADC), as was mentioned by Mozambique, consider the establishment of an International Criminal Court as a priority. The recent events in East Timor, the civil conflicts in Burundi, Rwanda and Sierra Leone where civilians are specifically targeted, underscore the urgency to bring into operation the International Criminal Court. The efforts to establish an International Criminal Court must not be another dormant humanitarian effort. States must begin to put in motion their national mechanisms for the ratification of the Statute of

the International Criminal Court.

Mr Chairman,

It may interest this meeting to know of the steps that South Africa is taking towards the ratification of the Statute of the International Criminal Court. South Africa hosted a Conference of SADC legal experts from the 5th to the 9th July 1999. The purpose of said Conference was, inter alia, to coordinate so far as it is possible the ratification process within the Southern African

Region and to produce a Model Ratification Kit to ease the ratification process for those States who may lack the capacity to closely scrutinize the Statute of the International Criminal Court.

The Conference managed to develop a Model Ratification Kit, which is to be recommended by the SADC legal experts to their relevant authorities to use as the implementing legislation to give effect to the Rome Statute.

The said Ratification Kit provides that the "Rome Statute of the International Criminal Court will have effect in the national territory." It was felt by the SADC legal experts that in order to ensure that the provisions of the Rome Statute are fully incorporated in their domestic legal systems, the Statute would have to be attached as a schedule to the implementing legislation their respective national Parliaments are going to approve. The Ratification Kit also provides for the International Criminal Court to sit in the national territory and makes provision for the granting of immunities and privileges, similar to those granted to Heads of Diplomatic Missions, to the Judges, the Prosecutor and

the Registrar. Furthermore, the Ratification Kit provides that any person who commits any of the crimes specified in the Rome Statute outside the national territory may be prosecuted and punished for that crime in the national courts as if the crime had been committed in the national territory. It was the view of SADC delegates that extraterritorial jurisdiction should be given to national courts in respect of the crimes referred to in the Rome Statute. The Ratification Kit provides for a different regime.

When it comes to offenses under Article 70 of the Rome Statute in that such offenses are not subject to extraterritorial jurisdiction. The Ratification Kit provides also for the national administrative systems to cooperate with the International Criminal Court in accordance with the Rome Statute. As time does not allow for an in-depth consideration of the Ratification Kit developed by the

SADC legal experts, copies may be made available to those delegations that request them.

Mr Chairman

Together with our SADC partners, South Africa acknowledges that The International Criminal Court will rely immensely upon the goodwill of States for purposes of its functions. To this end the South African government has constituted an inter-departmental committee which is currently studying the role that each Department will have to play in cooperating with the International Criminal Court.

Parallel to the process undertaken by the said government committee, law advisers are presently drafting the implementing legislation and have certified that the Rome Statute is not in conflict with the South African Constitution. It is now up to the government committee studying the obligations that arise out of the Rome Statute to prepare a memorandum to Parliament advising on the

course to take in respect of ratification.

There is general consensus amongst the experts involved in the ratification process in South Africa that the ratification of the Rome Statute should take place parallel to the drafting of the legislation to incorporate the said Rome Statute into domestic law. The contemplated implementing legislation will be along the lines of the Model Ratification Kit adopted by SADC delegates in the

regional Conference we have mentioned. It is the aim of South Africa to provide for an application of the principle of - aut judicare aut dedere - in respect of the crimes referred to in the Rome Statute as contemplated in the Model Ratification Kit developed by SADC legal experts. There is therefore every intention to proceed and ratify the Rome Statute as a matter of urgency.

Mr. Chairman

Like other delegations it is also a concern of my delegation that there may still be corrections outstanding to the Statute and we hope that a final corrected draft of the Statute will be issued soon. The other issue that is of concern is that the discussions on the Rules of Procedure and Evidence and the Elements of Crime have not been finalised. These issues are of particular concern in as far as the drafting of implementing legislation is concerned. South Africa envisages implementing legislation that will incorporate the Rome Statute including the Rules of Procedure and Evidence of the International Criminal Court.

Although my delegation cannot at this stage state the time frame within which South Africa will ratify the Rome Statute, we are working hard to ensure that South Africa is amongst the first sixty States to ratify and bring the Court into operation.

Thank you, Mr Chairman