Wide condemnation of state’s statutory move
DA to file application to Constitutional Court over International Criminal Court withdrawal
Criticism over Cabinet’s “procedurally flawed” decision to give notice of SA’s intended withdrawal from the Rome Statute of the International Criminal Court (ICC) is mounting with the Institute for Security Studies (ISS) also saying the intended move was procedurally flawed and illegal.
On Sunday the DA gave notice of its intention to file an urgent application to the Constitutional Court on Monday to challenge the constitutionality of the action.
Condemnation for the planned withdrawal also came from Lawyers for Human Rights and Archbishop Emeritus Njongonkulu Ndungane who said the decision “can simply not be defended in any way”.
Freedom Under Law has also added its voice to the condemnation of the decision, which DA leader Mmusi Maimane said marked “a dramatic decline in SA’s standing in the international community” and in its commitment to international justice and human rights.
The decision follows the failure of the government to arrest Sudanese President Omar alBashir when he visited SA in June 2015 for an AU summit.
Both the High Court in Pretoria and the Supreme Court of Appeal noted in a judgment earlier in 2016 that SA was obliged under international law to have arrested him to face the ICC’s allegations of war crimes, crimes against humanity and genocide committed in Darfur.
The Constitutional Court was due to consider a government appeal against these judgments in November but Justice Minister Michael Masutha announced at a media briefing on Friday that the state would withdraw its appeal.
The move by the minister came in the same month that Burundi announced similar plans.
Masutha argued that participation in the Rome Statue impeded SA’s peace-making efforts in Africa. Other critics in Africa argue that heads of state ought to be immune from prosecution at the ICC.
However, both the ISS and Freedom Under Law, and the DA, argue that the Cabinet decision is illegal as only Parliament could decide on a withdrawal from the statute.
“SA’s decision to withdraw was not approved by Parliament. Legally, ratifying a treaty has to happen through parliamentary processes. It logically follows that withdrawal would require the same,” ISS executive director Anton du Plessis said.
Freedom Under Law’s Nicole Fritz said implementation of the Rome Statute of the International Criminal Court Act 2002 governed all relevant undertakings assumed by the government.
“There can be no lawful purported withdrawal from the Rome Statute of the ICC while the implementation act is in force,” she said.
“Accordingly, the Minister of International Relations and Cooperation (Maite NkoanaMashabane) acts unlawfully and unconstitutionally in notifying the UN of SA’s intention to withdraw from the ICC.”
Masutha said on Friday a bill would soon be tabled in Parliament to repeal the implementation of the Rome Statute.
The DA will argue in its court papers the notice of withdrawal from the ICC is in breach of the Constitution, as it was delivered without securing a resolution of Parliament authorising it.
Maimane said the notice of Sudanese President Omar alBashir, centre, standing next to Republic of Congo's President Denis SassouNguesso, right, and Sahrawi Arab Democratic Republic Prime Minister Abdelkader Taleb Oumar at the 25th AU summit in Sandton in 2015. withdrawal was also a breach of the state’s constitutionally enshrined duty to respect, protect, promote and fulfil the rights contained in the Bill of Rights.
Maimane said the effectiveness and shortfalls of the ICC should be debated and SA should work tirelessly to reform it so that it performed its duties without fear, favour or prejudice.
The president of the assembly of state parties to the ICC founding treaty, Sidiki Kaba, was quoted at the weekend as having urged both SA and Burundi to reconsider their decision, which would "pave the way" for other African states to leave.