Enforcement of sentences of imprisonment

South Africa

Implementation of the Rome Statute of the International Criminal Court (Act No. 27 of 2002)

Chapter 4
Cooperation with and assistence to Court in or outside South Africa

Part 2
Judicial assistance to court (ss 14-32)

32 Enforcement of sentence of imprisonment

(1) If the Republic has been placed on the list of States contemplated in section 31 (1) and if the Court, in a particular case, as contemplated in paragraph 1 (c) of Article 103 of the Statute designates the Republic as a State in which a person in the case in question must serve a sentence of imprisonment, it must inform the Central Authority as soon as possible of such designation.

(2) The Central Authority must forward such designation to the Cabinet member responsible for correctional services who-

(a) may accept or refuse the Court's designation; and

(b) through the Central Authority, must inform the Court as soon as possible whether the designation is accepted or not.

(3) (a) Any person referred to in subsection (1) must, subject to paragraph (b), be committed to a prison in the Republic after the designation referred to in subsection (2) has been accepted and a warrant for his or her detention lawfully issued by the Court is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998 (Act 111 of 1998).

(b) If the Court, at any time, decides to transfer a sentenced person referred to in paragraph (a) to a prison of another State, the Central Authority must, in consultation with the Commissioner of Correctional Services and the Registrar of the Court, arrange for the removal of that person from the Republic in the custody of a person authorised by the Court and the provisions of section 12 apply with the necessary changes.

(4) (a) Subject to paragraphs (b) and (c), the provisions of the Correctional Services Act, 1998, and the domestic law of the Republic apply to a person contemplated in subsection (3).

(b) The sentence of imprisonment referred to in subsection (1) may only be modified by the relevant authorities in the Republic at the request of the Court, as a result of an appeal by the person serving the sentence to, or review by, the Court in terms of the Rules.

(c) The relevant authorities in the Republic must, as far as possible, ensure that communication between persons serving a sentence as contemplated in subsection (3) (a) and the Court can take place freely and confidentially.

Rome Statute

Article 103 Role of States in enforcement of sentences of imprisonment


(a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.

(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.

(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.


(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.

(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:

(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;

(b) The application of widely accepted international treaty standards governing the treatment of prisoners;

(c) The views of the sentenced person;

(d) The nationality of the sentenced person;

(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.

4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 105 Enforcement of the sentence

1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.

2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.