Al-Bashir the primary reason for ICC withdrawal, court hears

5 December 2016

Johannesburg – Sudanese President Omar al-Bashir was the primary reason for the government's decision to withdraw from the International Criminal Court, the Southern African Litigation Centre (SALC) argued in the High Court in Pretoria on Monday.

Advocate Max du Plessis said the South African government had no obligation to maintain diplomatic immunity for Al-Bashir.

The SALC and DA are among the applicants asking the court to declare the government’s decision to withdraw from the Rome Statute, the ICC’s founding treaty, unconstitutional. The respondents include President Jacob Zuma, Justice Minister Michael Masutha, the international relations department, the National Assembly speaker, and chair of the National Council of Provinces.

In June last year, the High Court in Pretoria handed down an order instructing the government to prevent Al-Bashir from leaving South Africa while he was in Johannesburg for a two-day AU summit. The SALC brought the application. The ICC wanted Al-Bashir to stand trial on charges of war crimes, crimes against humanity, and genocide.

The court ruled that failure to prevent him from leaving was unconstitutional. Despite this, the government allowed him to leave from Air Force Base Waterkloof. Government was denied leave to appeal the ruling.

Du Plessis contended it was irrational to use the notion of an African Court as an alternative to the ICC because it did not exist yet.

"If the end is accountability, you cannot achieve this with the African Court," he said.

A full bench of the court earlier heard arguments from the DA and the Council for the Advancement of SA Constitution (Casac).

They said the executive had no powers to reverse treaties and that only the National Assembly and the National Council of Provinces had the mandate to do so.

Anton Katz, for Casac, said the ICC symbolised certain overarching values.

Last month, the Constitutional Court dismissed the DA's application for direct access to challenge the government’s decision to withdraw from the ICC.

On October 21, Masutha told reporters that South Africa had initiated the process of withdrawing from the ICC by notifying the United Nations of its intention to revoke its ratification of the Rome Statute.

This article first appeared on News24, see here.