Complementarity, universal jurisdiction and the ne bis in idem clause of the South African Constitution

Authors Evode Kayitana

ISSN: 1996-2118
Affiliations: Post-doctoral fellow at the North West University
Source: South African Journal of Criminal Justice, Volume 28 Issue 2, p. 163 – 187


In order to give effect to the complementarity regime of the Rome Statute, South Africa passed the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which determines the modalities of prosecuting perpetrators of the crimes of genocide, crimes against humanity and war crimes in South African courts. This Act also provides that South African courts will have jurisdiction over these crimes not only when they are committed on South African territory but also when they are committed outside the Republic, thus empowering South African courts to exercise ‘universal jurisdiction’ over these three international crimes. This article addresses the question as to whether South African courts, acting under the complementarity regime of the Rome Statute, are allowed, as the ICC is, to retry cases which have been already tried in foreign States if it is established that such cases were not tried in good faith and would be admissible for retrial before the ICC? In other words, does South African law allow South African courts to make a contribution in the fight against impunity for the perpetrators of international crimes by conducting a second trial of a person already tried in a foreign country?