That is about to change. On 19 October, South Africa initiated the process of withdrawing from the International Criminal Court by notifying the United Nations (UN) of its intention to revoke its ratification of the Rome Statute of the International Criminal Court (Rome Statute), establishing the International Criminal Court (ICC). The notice cited the Court’s perceived bias towards African States and further that South Africa’s view of the remits of the Court is at odds with the work of the Court.
In terms of the Rome Statute, South Africa’s withdrawal from the ICC will only take effect a year after the date that the UN Secretary-General receives the notice. The same Rome Statute in addition provides that South Africa will not be entirely free of its obligations towards the Court. This means that South Africa will still be liable for any fees outstanding as part of its member contribution to the functioning of the ICC. Pertinently, according to the Rome Statute, South Africa is still required to cooperate with the Court regarding any matters which commenced prior to the to date of withdrawal. This means that South Africa still has a duty towards the ICC in respect of the al-Bashir matter, for which a warrant of arrest has been issued. A warrant of arrest in South Africa too, is still pending and unless a court deems the order invalid or the order is discharged through the arrest of al-Bashir, then the warrant of arrest is still valid. Similarly, the decision by the Constitutional Court in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another underlined the international law principle that under international law and the Implementation Statute, the South African Police Service (SAPS) is obliged to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals, despite none of the suspects being present in South Africa.
Should the South African government follow through with its decision to withdraw from the ICC, this implies that the following step will be to repeal the Implementation Statute. Unless new legislation is enacted which repeals the Implementation Statute, either in part or in totality, then it is still in force in South Africa. This, according to the Interpretation Act, which provides that when a law repeals wholly or partially any former law and substitutes provisions for the law so repealed, the repealed law shall remain in force until the substituted provisions come into operation.
In any event, the Constitution makes it mandatory for the courts, when interpreting the law, to consider international law. As such, South Africa will be hard-pressed to completely rid itself of the demands of international justice even if the State does not necessarily wish to subscribe to the same international laws.
South Africa joins Burundi (where the ICC is currently investigating war crimes and crimes against humanity) in taking steps to withdraw from the ICC. Kenya too has made threats to withdraw from the ICC following the ICC’s attempt to indict President Uhuru for his suspected role in the deadly violence after the 2007 elections. This is the company in which South Africa finds itself. The African Union (AU) too has in the past threatened the en masse withdrawal of African states from the Court, citing the same reasons that South Africa has given in its notice of withdrawal from the Court. The African Court, established by the African Charter on Human and Peoples’ Rights, only has jurisdiction over the 26 countries that have ratified the instrument establishing the Court. The African Court however, has jurisdiction over largely human rights matters and not international criminal justice, unlike the ICC. Despite African states having adopted the Malabo Protocol in 2014 in order to include international criminal law offences in the jurisdiction of the African Court, the Malabo Protocol has not yet come into force as no African state has ratified the Protocol.
To date no African Court has the same jurisdiction as the ICC, which creates all the more compulsion for African nations, including South Africa, to remain as part of the ICC. There have and there continues to be gross human rights violations in many parts of the world, with perpetrators largely committing such violations with impunity. As such, the ICC is an important tribunal through which there can be an end to impunity. While South African courts can still preside over, for the time being, cases involving international criminal justice, albeit without the clout of the Rome Statute, the decision to withdraw from the Rome Statute arguably casts a long shadow over South Africa’s commitment to ending global human rights concerns.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights