"If (former Liberian president) Charles Taylor found himself in South Africa... the country would not be lawfully empowered to surrender him to the ICC," Anton Katz, a member of the bar in Cape Town and New York, said at a seminar of the Institute for Security Studies (ISS) in Pretoria.
South Africa was a party to the Rome Statute, which brought the ICC into being. Accordingly, it was obliged under international law to co-operate with that court, he said.
Last year Parliament passed the Implementation of the Rome Statute of the International Criminal Court Act in an attempt to incorporate the provisions of that statute in domestic law.
But the unfortunate result of formulation of that act was, according to Katz: "Neither the executive nor the judiciary have the authority to order the surrender, in response to a request by the ICC, of a person accused of a war crime, genocide or crime against humanity."
Those are the three crime categories the ICC will hear. Its jurisdiction commenced from July last year.
In an article in the latest issue of the ISS' African Security Review, launched on Monday, Katz explains that in terms of the South African act, a request of the ICC for the arrest and surrender of a person will go to the director-general of the Department of Justice.
The DG will immediately refer that to a magistrate, who has to endorse the warrant of arrest for execution.
The next step is a hearing before a magistrate, who must determine whether the warrant applies to the person in question, whether the arrest was conducted in accordance with domestic law, and whether the rights of the person have been respected.
"If the magistrate is satisfied that the three requirements have been complied with he or she must issue an order committing the person to prison pending his or her surrender to the ICC."
This does not amount to a surrender order, Katz says.
"There is no provision for any competent authority, whether a court or the executive branch of government, to issue an order of surrender. Accordingly, the Implementation Act does not properly, or at all, provide the South African authorities with the necessary power to respond to a request for surrender by the ICC.
"This anomaly should be corrected as soon as possible."
According to Katz, Parliament tried to streamline the process currently followed with the extradition of people for trial in other countries.
This attempt appears not to have been successful though, he says in the article.
It will hardly help humankind if states become party to international treaties but cannot give effect to them because of technical reasons, Katz says.
"This allows the guilty to get off if they have clever lawyers.
Other than the guilty, the only beneficiaries of these technical hitches are the lawyers who... are paid handsomely to advance the technical points." - Sapa
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