Notes from the House

SA revives threat to leave ICC, using the law’s back door

By Moira Levy 12 June 2018

Judges Marc Perrin de Brichambaut (L), Bertram Schmitt (C) and Raul Pangalangan (R) in the courtroom prior to the the sentencing of Jean-Pierre Bemba Gombo in the International Criminal Court (ICC) in The Hague, The Netherlands, 22 March 2017. EPA/ROBIN VAN LONKHUIJSEN

South Africa’s determined ongoing efforts to cut its ties with the International Criminal Court of Justice (ICC) in the Hague resurfaced at the tail end of a meeting of the Committee of Justice and Correctional Services in Parliament.

Justice Minister Michael Masutha arrived late for the meeting, but in time to make a presentation on the International Crimes Bill, tabled in December in 2017. It was the last item on the meeting’s agenda.

This bill among other things makes provision for South Africa to repeal the Implementation of the Rome Statute of the International Criminal Court Act, 2002, which would provide for South Africa to withdraw from the ICC.

Despite most Members having left the meeting (on 30 May) by that point, Masutha took his time to bring those still present up to speed on the latest moves in South Africa’s plans to go it alone on matters to do with South Africa’s extraterritorial jurisdiction, especially the troublesome question of immunity for people accused or convicted of international crimes.

This is the latest development in a process that goes way back to 2015 when South Africa hosted fugitive leader Sudanese President Omar al-Bashir who faces two warrants of arrest for war crimes including genocide. In terms of the Rome Statue all member states, including South Africa, are expected to co-operate in bringing indicted state rulers such as al-Bashir to the international court to face trial.

Instead, South Africa disregarded the ICC’s Rome Statute and allowed al-Bashir to slip through the international legal net and return safely to his own country, despite local and worldwide outrage.

It is common knowledge that this provoked a flurry of legal activity and resulted in the North Gauteng High Court, later backed by the Supreme Court of Appeal, ruling that this was in contravention of the Constitution. But by then South Africa’s reputation was in tatters as the country that allowed an indicted state leader who is facing crimes against humanity to walk free.

For the first time the minister spoke of some of the behind-the-scenes drama that accompanied South Africa’s shock decision to host al-Bashir at an African Union (AU) summit and then ensure his safe escape. Masutha revealed that in the weeks running up to the AU summit South Africa had been in discussion with the ICC, even sending former Chief State Legal Adviser Enver Daniels to the Hague to seek advice on what had the makings of a serious embarrassment and an international incident.

South Africa was in no way caught off guard by the appearance of the Sudanese leader at the AU summit. The Department of International Relations knows long in advance who will be at such events and had issued a proclamation ahead of the meeting granting impunity to all attending heads of state, thereby disregarding advice that had emerged in the extensive consultation with the ICC in the weeks running up to the event.

While he did not go into the details of what transpired during Daniels’ audience with the pre-trial ICC chairperson to clarify South Africa’s obligations under the Rome Statute, the minister said only that South Africa was informed that it was under an obligation to execute a warrant of arrest when President al-Bashir arrived.

But this time Zimbabwe was holding the AU Chair and former president Robert Mugabe had issued the invitation to al-Bashir, leaving South Africa in a bit of a quandary. South Africa did not usually say no to Mugabe.

The Minister described South Africa’s dilemma to the committee. Central to South Africa’s international policy is its role as peace broker on the continent. How could it then be expected to arrest a member of the African Union (AU), especially one that was not party to the Rome Statute? Did the Rome Statute have jurisdiction over non-members?

The minister described frantic last-minute, early morning calls to demand that he and members of his team immediately travel to Pretoria on the morning of the summit in a hurried attempt to try to unravel the mess. All that those last-ditch meetings achieved was time to ensure Al-Bashir was well on his way to the safety of his own country.

As is well known, by the time the North Gauteng High Court finally took a decision that South Africa should have executed the warrant of arrest, President Al-Bashir was safely on his way home. However, that was not the end of the matter. If anything, it was just the start.

What followed gets complicated. A government appeal to the Supreme Court of Appeal against the High Court decision failed because, as the minister explained to the committee, having domesticated the Rome Treaty it had been written into South African law, and non-compliance meant South Africa was also in contravention of its own law.

In the minister’s own words, South Africa was compelled to execute the Rome Statute because, by domesticating the law of the Rome Statute, South Africa had “tied its own hands behind its back and the court could not untie South Africa” from this obligation.

At the same time, there was ongoing engagement with the body politic of the ICC where the minister himself represented South Africa twice at the Hague in political litigation over the question of whether South Africa had been under an obligation to issue the warrant of arrest or not. He told the meeting “South Africa did not obtain an appropriate audience from the ICC,” although it had attempted three times to speak to the Assembly of State Parties of the ICC.

The ICC had asked South Africa to be the first country on earth to arrest a sitting head of state who was in the country on official diplomatic business, having received diplomatic immunity before he arrived in the country. Why should South Africa do what the Americans and British would not do? That was the politics of it,” he said.

The “main difficulty” he announced was that the ICC had issued conflicting decisions on diplomatic immunity which “created confusion [and] was a fundamental question that needed to be resolved. All South Africa was asking for was greater legal certainty in terms of what the Rome Statute did and did not say,” he told the Committee.

Whether or not the ICC could have made its position more plain, South Africa chose not to appeal, he said, suggesting that it had no doubt about what the ICC expected of it. The decision not to appeal was partly because South Africa was given only five days in which to prepare an appeal – five calendar days, not even five court days, he said, which was not sufficient time.

Instead South Africa announced that it was going to leave the ICC. The judgement had simply further justified this decision, Minister Masutha said.

Not so fast, came a response from the South African courts. The parliamentary opposition and civil society brought and won a case in which it was decided that the South Africa executive could not unilaterally decide to withdraw from the ICC. A minister cannot simply disregard an international treaty of which it is a signatory just because he doesn’t want to comply.

This is where the principle of separation of powers becomes useful. The court ruled that Parliament had been part of the decision to sign up to the Rome Treaty and therefore had a role to play if there was to be a decision to leave the ICC.

This left Minister Masutha to announce, in March 2017, that South Africa was no longer going to withdraw from the ICC after all. Except that only months later he changed his mind – or maybe he had never intended to do so in the first place. In an interesting twist his ministry drew up and tabled the International Crimes Bill, which would give Parliament the voice it is required by law on the matter.

The International Crimes Bill in itself it is a masterful piece of legislation in that it ensure South Africa meets international legislative requirements and responsibilities to tackle international crime, including pursuing war criminals if and when it decides to do so.

The bill states that the proposed law would criminalise conduct constituting international crimes and would provide for the extradition of persons accused or convicted of international crimes to foreign States and to “entities,” that last a polite nod of recognition to an entity such as the ICC.

However, it goes on to “allow South Africa to reverse its own Rome Statute legislation while filling the gap it leaves by replacing it with the International Crimes Bill which (allows for) co-operation with entities in respect of international crimes”.

The minister made it clear to the committee that South Africa was not at odds with the ICC, would always stand with the underdog and never tolerate impunity for those accused of crimes against humanity – as long as this did not interfere with its role of African peace-broker.

South Africa’s position must not be misunderstood, he said, but in certain situations it must be able to “be responsive”.

South Africa had no desire to “create a vacuum” when it came to its ability to implement arrests for serious crimes against humanity, therefore “to plug the gap” the country had come up with its own law.

In answer to a question from the Members about whether Africa is able to provide its own alternative to the ICC, the minister made mention of the Malabo Protocol. He did not go into further details, except to say that it requires the signature of 30 African countries. After checking with his aides, he reported that so far seven countries on the continent had signed the protocol, none had ratified it. DM

Additional information sourced from the Parliamentary Monitoring Group

Moira Levy is Project director of Notes from the House

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