Parliament has confirmed receipt of Justice Minister Michael Masutha’s notice informing the National Assembly and the National Council of Provinces of a Cabinet decision to withdraw SA from the Rome statute of the International Criminal Court.
“Speaker of the National Assembly, Ms Baleka Mbete, and chairperson of the National Council of Provinces Ms Thandi Modise, today received correspondence from the minister of justice and correctional services, advocate Michael Masutha, informing parliament of a Cabinet decision to withdraw South Africa from the Rome statute of the International Criminal Court as well as a request for an opportunity to explain the decision in Parliament.
“This matter will be handled in accordance with due parliamentary process and through relevant structures in the institution,” Parliament said in a statement on Friday.
Masutha said at a media briefing on Friday that SA had began the process of withdrawal from the court in a move that has sparked outrage in some quarters. The withdrawal will take effect one year after the UN secretary-general has received the notification. SA will remain obligated under the Rome statute for the duration of the 12-month notice period.
Some observers say the government’s decision to withdraw is unconstitutional as it did not go through a parliamentary process.
The DA said Friday it would approach the courts to have the notice of withdrawal to the ICC set aside on the grounds that it is unconstitutional, irrational and procedurally flawed.
But Masutha said that the decision was constitutional, and according to legal advice the executive was not required to obtain parliament’s approval before entering or withdrawing from international agreements. Masutha defended government’s decision to withdraw from the Rome statute, saying the court’s provisions were at odds with SA’s Diplomatic Immunities and Privileges Act.
Several African leaders have argued that the ICC targets Africans unfairly. This week, Burundi’s President Pierre Nkurunziza signed legislation making his country the first to withdraw from the ICC.
Masutha said the Rome statute, which obliges signatories to arrest and hand over suspects including heads of state wanted by the ICC, could have the consequence of “forced regime change” if a sitting president was arrested.
SA’s intention to withdraw from the statute first emerged as the government was defending its failure to take steps to detain Sudanese President Omar al-Bashir during his visit in June 2015‚ when there was an ICC warrant for his arrest‚ and despite a high court order to do so. The Southern African Litigation Centre asked the court to ensure the government honoured its domestic and international law commitments by arresting Al-Bashir.
“In order to ensure South Africa’s continued ability to conduct active diplomatic relations, a bill proposing the repeal of the implementation of the Rome statute of the International Criminal Court Act 2002 will soon be tabled in parliament. We have already in writing informed the speaker of the National Assembly and the chairperson of the NCOP of this executive decision,” Masutha said.
Masutha explained that in the Southern African Litigation Centre case the Supreme Court of Appeal confirmed that in terms of customary international law heads of state enjoyed immunity against arrest.
However, the Supreme Court of Appeal found that, in enacting the implementation of the Rome statute of the International Criminal Court Act, SA had expressly waived the immunity of heads of state and that SA was obliged to arrest persons wanted for crimes committed against humanity.
“In essence, the Supreme Court of Appeal identified the problem which needs to be addressed. The effect of withdrawal from the Rome statute as well as the repeal of the implementation act thus completes the removal of all legal impediments inhibiting SA’s ability to honour its obligations relating to the granting of diplomatic immunity under international law as provided for under our domestic legislation. This therefore removes the necessity at least in so far as this aspect is concerned of continuing with the appeal.”
Masutha said SA remained committed to the fight against impunity and to hold accountable those who had committed crimes against humanity and other serious crimes.
“For this reason, SA will work closely with the African Union and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators, whilst at the same time continuing to participate and honour its commitments under international human rights instruments.” (Business Day SA)