DA bid to halt process of withdrawal from ICC is premature, court told

THE DA’s application to have the process of withdrawing South Africa from the Rome Statute of the International Criminal Court (ICC) halted was premature, the high court in Pretoria heard yesterday.

“We say that it is premature, and I will give reasons at the outset why we contend that it’s premature. Logic is that if it’s premature, and one of the several reasons is that it is before Parliament. It is being considered by Parliament,” Advocate Jeremy Gauntlett for President Jacob Zuma and ministers of International Relations and Justice told a full bench of three judges.

“There is a motion seeking approval of the withdrawal from (the) Rome (Statute). There is a continuing diplomatic process being conducted with the ICC itself and with ASP (Assembly of State Parties).”

Gauntlett said the relief being sought by the DA, joined by other parties including the Helen Suzman Foundation, Southern African Litigation Centre and Peace and Justice Initiative, was unprecedented.

“This is not bread and butter stuff. I will be corrected if I’m wrong, but this is the first instance that I know of where a formal decision of the executive in its highest form, cabinet, is sought to be declared invalid,” said Gauntlett.

“We are not saying this is a no-go area for the court. There are no no-go areas. We don’t have the political questions doctrine in South Africa, but what we do have is the separation of powers.”

He said that instead of focusing on the prosecution of alleged perpetrators on the continent, South Africa was focusing on the brokering and maintenance of peace. South Africa believed it was unfairly treated by the ICC when it consulted the court over the visit of Omar al-Bashir to South Africa in June last year.

Pretoria asked the ICC to exempt it from its requirement to arrest al-Bashir because it said it should enjoy immunity as a sitting head of state attending an AU summit.

However, the ICC rejected this request and demanded South Africa arrest al-Bashir, which it did not.

In October, Justice Minister Michael Masutha announced that the government had informed the UN of its intention to withdraw from the ICC.

The withdrawal of South Africa from a court which it helped found, will come into effect from October 19 next year.

The South African government was found by the country’s own Supreme Court of Appeal to have failed to uphold South African law by not arresting al-Bashir when he was in South Africa last year. – ANA