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Programme Director,
President of PGA, The Hon Kenneth Dzirasah;
Prosecutor of the International Criminal Court (ICC), H E Mr Luis Moreno Ocampo, Fellow PGA Members,
Distinguished participants,
Ladies and gentlemen.

It is an honour and privilege for me to make this statement on behalf of my country, South Africa.

I will, in my address, share with you our South African experience in ratifying the ICC Statute and its implementation into our national systems. You might also like to hear about developments on implementation in and around the Southern African Development Community (SADC).

Globalisation has made national borders increasingly indistinct and populations have become progressively more mobile and responsive to turmoil. Inter-dependence between and among states implies that individual countries cannot and do not go unscathed when their neighbours face instability or experience social or political upheaval.

South Africa recognises the interconnectedness that defines the very substance of the African sub-continent. And, within the context of the ICC, regional implementation of the Rome Statute is seen as a priority. We have thus joined forces with our SADC neighbours to promote regional adoption and implementation of the ICC Statute.

The SADC countries' strong support for the creation of the ICC was underscored when SADC held a Regional Conference on the International Criminal Court in Pretoria in September 1997.

SADC Member States also participated at the African Conference on the establishment of the ICC in Dakar, Senegal in February 1998, where a strong call was made for an effective and independent court.

SADC and other African regions promoted a common position during the Rome Conference in July 1998. The region has therefore played an important role in the formulation of the Rome Statute.

In June 1999 South Africa hosted a SADC conference on the Statute in Pretoria. The purpose of the Conference was to discuss the process of ratification and to finalise some outstanding issues on the agenda of the United Nations Preparatory Commission.

Our domestic legislation [Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002)] criminalises the crime of genocide, war crimes and crimes against humanity. Any person that commits any of these crimes outside the territory of the Republic, is deemed to have committed it within the territory of the Republic if:

* that person is a South African citizen; or
* that person is a resident in the Republic; or
* that person, after the commission of the crime, is present in the territory of the Republic; or
* that person has committed the said crime against a South African citizen or against a person who is ordinarily a resident in the Republic.

South African has taken a dualistic approach to implementing the Rome Statute. The Statute was approved by Parliament on 10 November 2000 while the Implementation Bill only followed some time later (July 2002). The delay on the Implementation Bill resulted from the complexity of integrating the Statute into our domestic legal frameworks and the extensive consultative process that accompanied the legislation on its passage through Parliament. It was a difficult process, but well worth the effort.

Our legislation provides that the Minister for Justice and Constitutional Development (in consultation with the Chief Justice and after consultation with the National Director of Public Prosecutions [NDPP]) must designate an appropriate High Court to try these crimes. This Act contains general principles of criminal law and of particular importance is the fact that any individual can be found to be criminally responsible by the courts, including a head of State. This principle was established by the Nuremberg Trials and recently advanced in the Pinochet trial.

If the National Director declines to prosecute he/she must provide our central authority with full reasons for his/her decision and the central authority must forward the decision, together with reasons, to the Registrar of the ICC. Complimentary is assured in that the ICC may still chose to prosecute even if presented with the South African Prosecutor's decision to decline.

Statute-related trials conducted domestically will be governed by South African evidentiary and procedural laws. Our extradition legislation [Extradition Act, 1962 (Act 67 of 1962) and International Cooperation in Criminal Matters Act, 1996 (Act 96 of 1996)] does not provide for surrender to and cooperation with international tribunals such as the ICC. We have thus incorporated a special regime for the ICC into our legislation to accommodate these specific circumstances.

Within the context of SADC, our legislation has been used as a model for some of our regional partners, thus ensuring a degree of harmonisation for the region. Some of our twelve SADC neighbours have yet to develop their own domestic legislation and South Africa will assist SADC wherever it can.

My country, South Africa, deposited the required instruments for ratification of the ICC Statute with the United Nations on 27 November 2000, long before we had set in place domestic legislation to regulate the Statute at home. It was perhaps this unqualified national enthusiasm for the principles contained in the Statute that put us under the microscope when the lobby swelled to exempt certain United States (US) citizens from the provisions of the Statue. The pressure has been immense and it has, for us, been a source of some disillusionment: It was, after all, the US that set the international example by championing strongly for the establishment of the two UN tribunals in the former Yugoslavia and Rwanda, the forerunners to and inspiration for the establishment of the ICC.

This reversal in principle was, for us, untenable and we have held fast to our view that there should be no exceptions in the application of the Statute. Our stance has not been without repercussions. As you know, South Africa is one of 35 beneficiary countries receiving US military aid. To add to the pressure that was building to exempt US soldiers and other personnel from prosecution by the ICC, the US Congress made receiving this aid conditional to compliance with the US stance on exemption; recipient countries were required to comply by the July 1, 2003 deadline or forfeit the aid.

The deadline has come and gone and South Africa's position on this issue remains unchanged. To change our stance would conflict with our constitutional obligations and international responsibilities. We are also concerned that granting exceptions such as these could set a dangerous precedent. We have striven, however, to maintain the excellent relations that we have with the US and remain convinced that our decision will not affect the sound footing upon which relations between our two countries are premised.

For a country like ours whose history has for decades been ravaged by daily acts of crime against humanity, the ICC has a particular and poignant significance; it offers us the promise that these heinous crimes will never again be tolerated or perpetrated with impunity. South Africans, almost without exception, hold the absolute conviction that the ICC is the most important human rights institution the world has seen in recent history. That the ICC has jurisdiction over individuals, not just nations, accused of genocide, war crimes, and crimes against humanity is a compelling reason for us to support its establishment and pursue a proliferation of its influence.

It is unfortunate that agreement has not yet been reached on the crime of aggression. Achieving global peace will not be possible without putting a halt to acts of aggression. It is in this context that the crime of aggression should be included within the ICC's jurisdiction as a matter of urgency. If our goal is to make the world a safer place to live in, we must bring ourselves to agreement on this issue.

We gather here two years after that fateful day in September when New York City shuddered at its very foundations and the world stood aghast at the intensity of the attack on the American people and the senseless loss of so many innocent lives. South Africa joined the rest of the international community by condemning the attacks. She also called for the perpetrators to be apprehended and for measures to be taken to prevent a repetition of such crimes.

Since then, the international economy has limped towards partial recovery; uncertainty still prevails around the fate of Afghani detainees at Guantanamo Bay; unilateral military action in Iraq has cast long shadows of question over the role of the United Nations as an international institution; international legal jurisprudence has been cast to the wind; and current interpretations of the rule of law have left that principle in tatters as it flounders upon expedience and criminal actions that fly in the face of international justice, peace and common decency. To say that we live in uncertain times is a gross understatement.

It is therefore critical, if we are to restore global certainty and security, that we strengthen and support international institutions such as the United Nations (UN) and the International Criminal Court. We dare not, as an international community, succumb to a siege mentality. Rather, we should be demonstrating an energised and invigorated allegiance to the rule of law and the international institutions that underpin its application within the community of nations. In particular, the role and function of the UN Security Council should be scrutinised. We need a Council that can play a more effective role in maintaining world peace and reducing conflict. Perhaps the time has come to give the non-permanent members a greater role on that Council?

The establishment of the ICC can and must compliment the efforts of the international community in general and the UN in particular to end conflicts and protect nations. Given the extreme vulnerability of women, the elderly and children to conflict and war, both the UN and ICC have specific obligations to provide special protection and redress to these susceptible groups. We can no longer stand aloof to this issue; our inaction on this front is an indictment that must be corrected.

I therefore wish to congratulate the Parliamentarians for Global Action (PGA) and its members for their singular contribution to making the International Criminal Court (ICC) a reality despite the apparent indifference of some countries to the process and the vigorous opposition to it demonstrated by others.

We - all of us - need to build and strengthen international institutions that are capable of making timely decisions and enforcing them; institutions that intervene decisively to end an emerging culture of impunity for crimes committed; and institutions whose gravitas and global credibility have a deterrent effect on those nations and individuals that seek to compromise human rights, corrode national and international criminal codes and terrorise innocent communities or groups.

Reinforcing the institutional architecture that supports a strong and effective International Criminal Court is as strong a statement as we can make for opposition to oppression and support for freedom and democracy.

As parliamentarians of the world we are in a unique position to muster support for a strong ICC. We have a critical role to play within our domestic jurisdictions and in the organisations that bind us regionally into powerful alliances. We must do everything we can to support the legislative processes required to ratify and implement the Rome Statute. We must advocate unrelentingly for the Court's ability to dispense truly impartial justice when national courts are unable or unwilling to do so.

We must not, however, lose sight of the ultimate objective by becoming embroiled in legal technicalities. The critical ingredient guaranteeing the success of the ICC is the broad-based political will to see the institution develop and thrive. As MPs we are key role-players in that process. We must, through our advocacy, generate a positive mood and willingness to participate in the ICC. In the face of recalcitrance, we must reverse opinion and negate opposition. In the face of ambivalence, we must tip the scales in favour of our goals. We owe this to our children and our children's children. We cannot and must not fail.

I thank you.

"effectiveness will depend on the number of countries that support it. The major European nations are already on board and it is heartening that so many other nations have ratified the Rome Treaty so expeditiously. Its effectiveness and credibility will, I suggest, be determined by the outcome of its first investigations. The extent to which relevant governments support it and execute its orders will be crucial. It should not be forgotten in this context that the Security Council is given the power by the Rome Treaty to refer cases to the ICC, thereby conferring upon it the Council's peremptory powers under Chapter 7 of the Charter. Whether the United States would use its veto to block such a reference remains to be seen."

Justice Richard Goldstone, Chief Prosecutor to the Kosovo and Arusha tribunals. [22 April 2002]

"Military courts are to justice what military bands are to music."
Geoffrey Robertson, President of the Special Court of Sierra Leone commenting on recent US led efforts to create military tribunals to try Afghani detainees currently being held at Guantanamo Bay.

Source: Department of Justice & Constitutional Development (http://www.doj.gov.za)