South Africa and the ICC: Dismantling the international criminal justice system to protect one individual?

Impetus and momentum for withdrawal was generated by President Omar al-Bashir’s 2015 visit and the subsequent fallout from South Africa’s failure to arrest him. South Africa finds itself in this quandary because of Bashir.

Just over a year after President Bashir’s Sudan 01 plane took off from the Waterkloof Air Force Base, Minister of Justice and Correctional Services Michael Masutha announced South Africa’s intention to withdraw from the Rome Statute.

The Notice of Withdrawal was sent to the UN secretary-general on 19 October 2016. Subsequent litigation resulted in the revocation of the Notice of Withdrawal due to the government’s failure to firstly withdraw the Implementation of the Rome Statute Act (ICC Act) before submitting its notice of withdrawal.

Having learnt from previous mistakes and in a bid to follow proper procedure this time round, Masutha, has opted to begin with the introduction of a Bill that repeals the ICC Act which will allow withdrawal from the ICC to follow.

South Africa’s reasons for withdrawal have ranged from allegations that the ICC is targeting Africa, to statements about how, as stated in the Preamble of the new International Crimes Bill, “South Africa, in exercising its international relations with heads of state of foreign countries, particularly heads of state of foreign countries in which serious conflicts occur or have occurred, is hindered by the implementation of the Rome Statute of the International Criminal Court Act, 2002, which together with the Rome Statute of the International Criminal Court compel South Africa to arrest heads of state of foreign countries wanted by the ICC”.

Bashir stands accused of two counts of war crimes, five counts of crimes against humanity and three counts of genocide against black Sudanese people. This includes allegations of murder, extermination, torture, rape, and exercising “full control” over the vicious and ruthless Janjaweed militia who chanted, “ You make this place dirty; we are here to clean this place. You blacks are like monkeys. You are not human” as they razed villages to the ground.

To date, Bashir is the only head of state who is wanted by the ICC. There are currently no other heads of state who are in the same position. Therefore, South Africa is about to withdraw from the Rome Statute, abandon the international criminal justice project, amend its ICC Act, Geneva Conventions Act, Torture Act and six other domestic Acts, for an individual whom they will have to arrest despite withdrawing should he be found on South African soil.

Why does the duty to arrest and surrender Bashir, survive withdrawal from the Rome Statute?

Withdrawal is effective one year after a notice of withdrawal is sent to the UN secretary-general. Even after that one year has lapsed, withdrawal does not absolve South Africa from its legal obligation to arrest and surrender Bashir as article 127 (2) of the Rome Statute states that a state “shall not be discharged from the obligations arising from this Statute while it was a Party to the Statute”.

South Africa’s withdrawal will not affect its obligations to co-operate with the ICC with regard to “proceedings in relation to which the withdrawing State had a duty to co-operate and which were commenced prior to the date on which the withdrawal became effective.”

Given that South Africa has had a duty to arrest Bashir since his first indictment in 2009, that duty will survive withdrawal from the ICC system. Burundi finds itself in the same position, despite its withdrawal coming into effect on 27 October 2017. It remains bound to co-operate with the ICC’s ongoing investigation.

The subsistence of this duty is also spelled out in the International Crimes Bill as it too acknowledges in section 36 (2), that “any co-operation” with the ICC related to criminal investigation and proceedings that South Africa had a duty to co-operate prior to withdrawal, must still be handled in terms of the provisions of the existing ICC Act. Needless to say, the ICC Act is very clear on South Africa’s duty to co-operate with the ICC, hence why proponents for withdrawal are anxious to have it repealed.

For as long as Bashir remains wanted by the ICC, South Africa, like every other state party, will remain legally bound to arrest him.

In addition, South Africa not only domesticated the Rome Statute, but the 2009 ICC arrest warrant for war crimes and crimes against humanity was also domesticated in terms of South African law by a duly authorised magistrate. Thus, for all intents and purposes there is a South African warrant for Bashir’s arrest.

Is the visit of one head of state really worth all of this trouble? Why is the government going to such great lengths to protect one individual?

Not to mention that if, South Africa successfully withdraws from the Rome Statute, this will, as has been written by many commentators including Max du Plessis, constitute a wasted opportunity to show leadership. The ICC is by no means a flawless institution above reproach. On the contrary, it is in need of constructive engagement from its member states and South Africa could be playing a leading role in helping improve the ICC and its relationship with many African states who have increasingly become dissatisfied with the court’s case selection and efficiency.

This is a crucial time for parliamentarians, politicians, policymakers and the leaders of this nation to consider the grave consequences of withdrawing from the ICC. Given the nation's familiarity with the consequences of apartheid, which is also a crime under the Rome Statute, the significance of South Africa’s membership to the only permanent international accountability mechanism, should not be lost on its leaders.

South Africa played a crucial role as the leader of the like-minded group that fought for the creation of a strong independent ICC. South Africa’s commitment to fight impunity was captured succinctly in former minister of justice, Dullah Omar’s wise words in 1998, “The creation of the ICC will send a clear and unequivocal message that perpetrators of these crimes will not get away with impunity.”

Surely constructive and sustained engagement is the way forward, not withdrawal. DM

Navi Pillay is the former United Nations High Commissioner for Human Rights and member of the Africa Group for Justice and Accountability. Angela Mudukuti is the International Criminal Justice Lawyer at the Wayamo Foundation.