The exercise of universal jurisdiction for specific crimes and the complementarity principle of the Rome statute under South Africa’s legal system

Abstract

Universal Jurisdiction (UJ) is one of the most effective judicial mechanisms used by the courts to combat and prevent the proliferation of some international crimes that have shocked humankind. One common means of exercise UJ, is through international treaties signed by civilised nations of the world. Accordingly, the Rome Statute is a treaty providing devices for the prosecution of crimes under Article 5 by both member states and non-member states through UJ. Consequently, all ratifying states the Statute, besides obligations to cooperate with the Court, are also expected to exercise UJ in their domestic legal system as required by the Statute. This article, therefore, sought to determine whether individuals indicted for the crime of genocide, war crimes, and crimes against humanity may be prosecuted in South Africa (SA) and, if so, can the courts in SA also exercise UJ for those individuals whose states are not members of the Rome Statute? This article examined the exercise of UJ under the Rome Statute and domestically in South Africa through the Implementation Act using a qualitative research method.  It argues that through the principle of complementarity and under the Implementation Act, the SA legal system has been authorised to exercise UJ for those crimes under the Statute as implemented by courts in SA in the Al Bashir case.