ICC withdrawal marks a sad day for human rights - SALC

21 October 2016

Cape Town - The South African Litigation Centre (SALC) says it is disappointed by the government's decision to withdraw from the International Criminal Court (ICC).

Justice Minister Michael Masutha said on Friday the government decided to remove itself as a signatory of the Rome Statute because there was a conflict between its obligations to the African Union to grant its heads of state immunity.

The SALC brought the original application to the High Court in June 2015 to enforce an ICC arrest warrant on Sudan President Omar al-Bashir when he was in Johannesburg for an AU summit. The court granted the order but was subsequently ignored by government and al-Bashir was allowed to leave the country.

SALC advocate Angela Mudukuti told News24 on Friday that the centre is now reviewing all its legal options following the announcement.

"We are disappointed and express deep regret that this decision has been made," she said.

"In light of these developments we will have to consult our legal team and have internal discussions about the way forward.

"Should the decision to withdraw withstand legal scrutiny then it is indeed a sad day for human rights and international criminal justice."

The SALC was listed as respondents in a Constitutional Court appeal by the government to have the High Court order overturned. Masutha said that appeal will now be withdrawn.

Implications

Mudukuti said that while the legal ramifications play out over the next 12 months, the order of the High Court, upheld by the Supreme Court of Appeal (SCA) in March, still stands.

"With regard to our case, should it be found that the withdrawal has been conducted in compliance with the law then it will only take effect one year from its acceptance by the UN.

"In the interim, the obligations remain intact."

Institute for Security Studies executive director Anton du Plessis agreed that the South African government still has to abide by the SCA's ruling until the decision is ratified by Parliament.

He also said the decision should have gone through Parliament first and that the consequences of the High Court's judgment now need to be thought through.

"There must be implications for members of the executive who violated the law," he told News24 on Friday.

"If there aren't, and we allow this to be politically whitewashed, the implications for the law in this country are very concerning."

He also said it would be difficult for the South African government to face retrospective sanctions over its decision, as it would require the Security Council of the ICC to act.

He said that China and Russia, two members of the Security Council, but also Brics members with South Africa, were unlikely to intervene.

This article first appeared on News24, see here.