The government says it is still committed to eventually withdrawing South Africa from the International Criminal Court (ICC) – despite its recent withdrawal of its notice to withdraw. By PETER FABRICIUS.
The South African government hinted on Sunday that it might not proceed with the withdrawal from the International Criminal Court if the ICC were to rule that South Africa was justified in not arresting Sudanese President Omar al Bashir when he visited South Africa in June 2015.
Environment minister Edna Molewa – who is also chair of the ANC’s sub-committee on international relations – confirmed on Sunday that withdrawal from The Hague-based ICC was still the ANC and the government’s official policy.
She recalled that the government had withdrawn its official application to withdraw from the ICC only on procedural grounds, after South African courts ruled that the government should first have obtained Parliament’s approval.
The ANC and the government’s decision derived from a decision by the ANC’s national general council, Molewa said at a briefing by the ANC’s sub-committee on the ANC’s international relations document to be adopted at its policy conference.
That decision had not been reviewed since then, she said.
She stressed, however, that this decision did not mean the ANC was in favour of impunity for those who committed the grave crimes which are adjudicated by the ICC (genocide, war crimes and crimes against humanity.)
So even as South Africa was withdrawing from the ICC, it was consulting with other governments and the African Union about the need to amend the Rome Statute which governs the ICC and about strengthening African courts to ensure they did not allow even heads of state to break the law.
She confirmed South Africa is seeking an amendment to the articles of the Rome Statute which do not allow ICC member governments to grant immunity against arrest to sitting heads of state.
This was the issue which sparked a clash between the ICC and the South African government in June 2015 when South Africa allowed Sudanese President Omar al-Bashir – a fugitive from ICC justice – to enter South Africa to attend an African Union summit and then to leave, without attempting to arrest him.
The ICC charged South Africa with failing to comply with its ICC obligations.
At an ICC hearing on that issue in April this year, the South African government denied the charge. It said although the Rome Statue generally denies immunity even to sitting heads of state, Article 98 (1) of the statute grants an exception.
The article says the ICC should not ask a member state to surrender such a fugitive if this would be inconsistent with the member state’s obligations under international law to grant diplomatic immunity to that person. Article 98 (1) adds that the ICC may only ask a member state to surrender such a fugitive if the state of that fugitive has agreed to waive its immunity.
Sudan, obviously, did not agree to waive Bashir’s immunity against arrest in South Africa.
Official sources said the ICC was expected to rule on this matter as early as this month. If the ICC rules that South Africa did indeed violate ICC procedures, it could refer South Africa to the ICC’s Assembly of States Parties or to the UN Security Council for possible punishment.
But if the ICC rules instead that South Africa did not violate the Rome Statute – because of the Article 98(1) immunity clause – it could radically change the way member states deal with high-level fugitives like al-Bashir in future.
Molewa may have been referring to this crucial decision when she said on Sunday that the process of withdrawing South Africa was continuing because “the reasons we want to move out of the ICC have not vanished. The only thing that will get the reasons to vanish is when… but that will have to be evaluated elsewhere. But for now we are implementing.”
On another issue, Molewa dismissed suggestions that the “challenges” which the ANC was now facing internally were undermining its credibility and efficacy as a leader on the continent. She said other African governments were still telling South Africa that “we really need and respect your role in fora wherever we go”.
Meanwhile International Relations and Co-operation Minister Maite Nkoana-Mashabane confirmed that the BRICS was still determined to establish its own credit rating agency, as agreed last year. She said BRICS ministers of finance had recently met and agreed to put forward a proposal for this agency at the next BRICS summit in China later this year.
Nkoana-Mashabane also dismissed suggestions that South Africa needed a stand-alone economic diplomacy department separate from her Department of International Relations and Co-operation. (Dirco)
“We have got so many departments of economic this, economic that. We (just) need to train and retrain our diplomats when we post them abroad,” she said.
The ANC’s international relations draft policy document urged government to improve the co-ordination of the country’s economic diplomacy efforts and said it was encouraged by the efforts under way to ensure full operationalisation of the recently established economic diplomacy unit in Dirco.
It was not clear why Nkoana-Mashabane dismissed suggestions of a completely separate department of economic diplomacy as that option was not mentioned at the briefing.
She also took a sideways swipe at the government’s habit of deploying officials unwanted elsewhere into her department.
“Let me also say Dirco is also not a place where people who are tired must come. We want people who are still very agile, who can take many other elements of diplomacy serious.”
South Africa is known to have one of the highest rates in the world of political appointees – rather than career diplomats – to ambassadorships and even deputy ambassadorships. DM
Photo: President Zuma with Minister Maite Nkoana-Mashabane at the Second Extraordinary Summit of the Volunteering Nations on the African Capacity for Immediate Response to Crises (ACIRC). AU Headqurters, Addis Ababa, Ethiopia. 09/11/2016, Elmond Jiyane, GCIS