SA’s reputation is at stake
The intention of government to withdraw from the Rome Statute creating the International Criminal Court (ICC) has been condemned across the board, not only as a disaster for the victims of human rights violations across the globe, but also because it is procedurally illegal.
The ICC was created to prosecute war crimes and genocide and SA played an important role in that creation. The intention to withdraw from the court undermines SA’s reputation as a defender of human rights. Since the first democratic government of Nelson Mandela, human rights have been cited as a fundamental plank of SA’s foreign policy. The letter to the UN from International Relations Minister Maite Nkoana-Mashabane announcing SA’s intention to leave the court follows that of Burundi.
Burundi’s President Pierre Nkurunziza is serving a third term that is patently illegal. There has been a reign of terror in his country that has reportedly seen the deaths of a thousand people that the ICC was poised to investigate. The Institute for Security Studies noted that “in its swift pursuit to also withdraw from the ICC, SA has chosen a strange bedfellow in Burundi. SA’s stature as a supporter of human rights is at stake — and the decision comes at a time when domestically, the rule of law is already under severe strain given recent decisions and internal politics”.
The consensus emerging is that because it was an act of Parliament that incorporated the Rome Statute into South African law, the proper procedure would have been for Parliament to repeal that law before the letter was delivered to the UN.
Justice Minister Michael Masutha has insisted that the move was well within the authority of the executive to take and has promised that a bill repealing the Implementation of the Rome Statute act would soon be sent to Parliament. But this seems to be closing the stable door after the horse has bolted.
IT HAS TO BE REMEMBERED THAT THE COMPLAINTS TO THE ICC WERE LAID BY AFRICANS THEMSELVES
The letter to the UN suggested that the ICC was unfairly targeting African leaders. While it is true that all the current cases before the court are from Africa, it has to be remembered that the complaints were laid by Africans themselves.
Masutha argued that membership of the court was hampering SA’s ability to mediate conflicts in Africa. This may or may not be so, but by weakening the court, SA makes justice for the victims of despots less likely. The government has twice received a bloody nose from the courts over the failure to arrest Sudanese President Omar al-Bashir in June 2015 and was facing a third reversal in the Constitutional Court in November. It has now withdrawn its appeal against the ruling of the Supreme Court of Appeal that allowing Bashir to leave the country, when he should have been arrested, was illegal.
Whether this means that there will now be legal consequences for those who facilitated Bashir’s departure when the high court had ordered that he remain in SA remains to be seen. There should be sanction for those who were in contempt of the court order.
Masutha insists that Bashir enjoyed diplomatic immunity while attending the AU summit, and his arrest would have constituted an illegal form of regime change. A range of African countries believe that sitting presidents should be immune from prosecution but this simply means that Bashir and Nkurunziza would illegally cling to power to avoid prosecution.
We can only hope that Parliament rediscovers its conscience and votes to not repeal the Rome Statute of the ICC, which should be reformed and not destroyed.