Aug 31, 2018 | Advocacy, Non-legal submissions
Today, the ICJ made a submission to the Committee on Economic, Social and Cultural Rights in advance of Committee’s examination of South Africa’s initial periodic report under the International Covenant on Economic, Social and Cultural Rights. South Africa ratified the Covenant in 2015.
When CESCR convenes to consider South Africa’s report on 2-3 October 2018, it will therefore be the first time that the Committee has the opportunity to review a report from South Africa on the implementation of its Covenant obligations.
In its submission, supplementing submissions made by a range of South African civil society organizations, the ICJ drew the Committee’s attention to:
a) South Africa’s incomplete discharge of its obligations in terms of the Covenant;
b) The South African Government’s need for guidance from the Committee on the discharge of its obligations in terms of the right to work;
c) The South African Government’s need for guidance from the Committee on the discharge of its obligations in terms of the right to an adequate standard of living;
d) The South African Government’s failure to report effectively and accurately on its efforts to realize the ESC rights of persons with disabilities;
e) The uncertain status of the South African Government’s commitment to the enactment of legislation to ensure the implementation of the Covenant;
f) The uncertain status of the South African Government’s intention to ratify the Optional Protocol to the Covenant; and
g) The uncertain status of the South African Government’s declaration with regard to the right to education.
The ICJ’s submission invites CESCR to make various specific recommendations to the Government of South Africa in its Concluding Observations on each of these issues. Broadly, the ICJ also invites CESCR to recommend to the Government of South Africa time-bound commitments to processes leading to:
1. The full domestication of Covenant in South African law;
2. A comprehensive review of South Africa’s domestic laws and policies on ESC rights to ensure that they are implemented consistently with South Africa’s obligations in terms of the Covenant; and
2. The ratification of Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
The ICJ’s submission also supports submissions by civil society organizations and the South African Human Rights Commission inviting CESCR to recommend that South Africa withdraw its declaration relating to its “immediate” obligations in terms of the Covenant right to education.
Finally, the ICJ considers it critical that the South African Government reflect on the ways in which the Covenant to increases, alters and nuances the nature and content of its human rights commitments and obligations in terms of the realization of economic, social and cultural rights.
This the ICJ submits is particularly crucial in regard to rights which are entrenched in the Covenant but not the South African Constitution such as the right to work (Articles 6-8) and the right an adequate standard of living (Article 11).
In undertaking this process, the ICJ submits that due regard should be had the standards set out in the Covenant as interpreted by the Committee in its general comments.
SouthAfrica-ICJSubmissionCESCR-Advocacy-Non-legal submission-2018-ENG (full text, PDF)
Dec 8, 2017 | News
The South African government should reconsider its move to withdraw from the ICC, said the ICJ, the Southern Africa Litigation Centre and Lawyers for Human Rights, local, regional and international human rights advocacy organizations.
This will be the second attempt by South Africa to withdraw from the Rome Statute, after the first attempt in 2016 was declared unconstitutional by the High Court after being successfully challenged by several parties including the Southern Africa Litigation Centre.
This week Minister Michael Masutha announced the government’s intention to pursue withdrawal from the ICC in a speech at the Assembly of State Parties of the ICC in New York.
The Minister was critical of Pre-Trial Chamber ruling of the ICC, which found that South Africa was obliged to arrest and detain Sudanese President Omar Al-Bashir.
He claimed that South Africa’s continued membership on the ICC would undermine “its ability to carry out its peace-making mission efforts in Africa” and “fulfill its role as mediator for peace”.
“The pursuit of justice and the pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.
“Protecting heads of state from justice compromises efforts at trying to establish peace. South Africa’s refusal to arrest Bashir is an affront to Darfur victims,” she added.
Arnold Tsunga, the ICJ’s Africa Director said: “The notion that South Africa needs to embrace impunity in order to help peace is irrational and at odds with experience around the world. Greater accountability, for instance through international mechanisms, assists the rule of law, development efforts and respect for human rights. It is vital that South Africa projects itself as a leader in anti-impunity efforts in the region.”
“Withdrawing from the ICC would destroy a pillar of African efforts to tackle impunity which would be an unfortunate move for South Africa and the international community,” he added.
Masutha did not outline how the withdrawal will take place in compliance with South African law, indicating only that he would “shortly serve on Parliament” notice of withdrawal.
The African National Congress (ANC), South Africa’s ruling party, has indicated that it will discuss the issue of withdrawal at its policy conference scheduled for later this month.
According to a High Court judgment handed down earlier this year, however, the executive has no legal authority to withdraw South Africa from the ICC.
The High Court held “South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act”.
If notice were given to Parliament, it would have to independently consider the merits of withdrawal.
Under South African law the public should then be given an opportunity to participate in this process, which would involve the repeal of the Implementation Act.
“There is the added danger of an impunity gap should South Africa pull out of the ICC without putting in place any other mechanisms to ensure accountability for international crimes. There are currently no other regional or international fora to prosecute serious crimes under international law,” said Jacob van Garderen, Director of Lawyers for Human Rights.
Contact
Arnold Tsunga, ICJ’s Africa Director, t:+27 716405926, e: arnold.tsunga@icj.org
Tim Fish Hodgson, ICJ Legal Adviser, t:+27 828719905, e: timothy.hodgson@icj.org
Contact at Southern Africa Litigation Centre: Kaajal Ramjathan-Keogh kaajalr@salc.org.za / +27 84514 8039
Contact at Lawyers for Human Rights: Jacob van Garderen, jacob@lhr.org.za / +27 828203960
Background
Burundi left the ICC on 27 October 2017. South Africa has declared its intention to be the second African country to leave.
Gambia, which a year ago, had also indicated its intention to withdraw, spoke at the Assembly of State Parties of its pride to remain with the ICC and of its re-commitment to the ICC.
The South African government appeared before the Pre-Trial Chamber of the International Criminal Court in April 2017 to defend its failure to cooperate with an ICC request to arrest and surrender President Omar al Bashir of Sudan when he attended an African Union Summit in June 2015.
The Pre-Trial Chamber issued its ruling on 6th July 2017 which confirmed that South Africa did in fact fail to cooperate with a request from the ICC in violation of its international law obligations. The Chamber did not, however, issue any sanction for this non-compliance.
Read also
ICJ Briefing submitted to the Portfolio Committee on Justice and Correctional Services.
High Court judgment on withdrawal from the ICC.
ICC ruling on South Africa’s failure to arrest President Omar Al-Bashir.
Opening Statement of Minister of Justice Michael Masutha at Assembly of States Parties of the ICC.
Jul 6, 2017 | News
The ICJ welcomed today’s judgment by the International Criminal Court (ICC) that South Africa had violated its legal obligations by failing to arrest Sudanese President Omar al-Bashir during his visit to the country in June 2015.
The ICC said the South Africa should have surrendered him to the ICC for prosecution.
President al-Bashir (photo) had been indicted by the ICC for genocide, crimes against humanity and war crimes in connection with attacks against civilians in the Darfur region of the country.
“The judgment is a victory for international justice. It is an extremely important step toward tackling impunity in Sudan and worldwide,” said Arnold Tsunga, the ICJ Africa Regional Director.
The court said unequivocally that South Africa had a duty to arrest and surrender president Bashir to the ICC for prosecution.
It said that South Africa had a duty to recognize that head of state immunity did not apply to al Bahsir under the terms of the Rome Statute, and that leaving the question of immunity to South Africa’s voluntary discretion would have created “an insurmountable obstacle for the court to exercise its jurisdiction.”
The Court also said that Sudan itself had an obligation to remove and immunities for al-Bashir in respect to matters for which he was under indictment.
“The ICJ calls upon the Governments of South Africa and Sudan to respect the judgment of the Court, and urges all States to cooperate with the Court to bring President al-Bashir, and others indicted to justice,” Tsunga added.
The ICC also called on the UN Security and the Assembly of States Parties of the ICC to take appropriate measures to address the non-compliance by South Africa and Sudan.
Background
South Africa has been a party to the Rome Statute of the International Criminal Court since 27 November 2000.
States parties to the Rome Statute are obliged to cooperate with ICC, including by arresting and surrendering persons under indictment by the ICC who may be on their territory.
South Africa took measures to cooperate with the ICC by enacting the Implementation of the Rome Statute of the International Criminal Court Act, 2002.
Accordingly, South Africa had a duty to arrest President al-Bashir when he visited South Africa in 2015
President al-Bashir stands accused of serious crimes, with two warrants of arrest issued by the pre-trial chamber of the ICC.
They all are for war crimes, crimes against humanity and genocide, related to events in the Darfur region of Sudan.
Among the acts are widespread murder, rape and torture.
Read also:
South Africa appears before ICC for failure to arrest Sudanese President Bashir – The ICJ observes the hearing
Contact
Arnold Tsunga, ICJ Director for Africa, t +27716405926 ;
Thulani Maseko, ICJ Legal consultant, t: +268 7602 5165
Ian Seiderman, ICJ Legal & Policy Director, t: +41 22 979 3837
Apr 6, 2017 | News
South Africa is to appear before a scheduled hearing at the International Criminal Court on 7 April 2017 (ICC) in The Hague for a hearing on its failure to arrest Sudanese President Omar Hassan Ahmad al Bashir when he visited South Africa in June 2015.
The hearing, before the pre-trial Chamber of the ICC will consider whether South Africa was in breach of its obligations under the ICC Rome statute when it failed to effect the ICC arrest warrant on President Bashir.
The ICJ, represented by South African Justice Johann Kriegler, will be attendance observing the proceedings.
President Bashir has been indicted by the ICC on charges of genocide, war crimes and crimes against humanity in relation to atrocities committed from 2003 to 2008 in Darfur.
“The case is critical for ensuring the effectiveness of the ICC as an institution. The only means the ICC has of enforcing its orders is through the cooperation of States,” said Sam Zarifi the Secretary General of the ICJ.
“The failure to arrest President Bashir and the subsequent efforts to withdraw from the ICC Rome statute raise important questions about South Africa’s commitment to the fight against impunity in Africa and globally,” Zarifi added.
South Africa gave notice last October that it intended to leave the ICC, but this notice has been withdrawn, at least pending debate in Parliament.
The ICJ had filed a brief with the South African Parliament calling on South Africa to remain with the ICC Rome statute.
The brief was signed by retired South African Constitutional Court Justices Laurie Ackermann, Richard Goldstone, Johann Kriegler, Yvonne Mokgoro, Kate O’Regan and Zak Yacoob.
It was co-signed by Navi Pillay, former United Nations High Commissioner for Human Rights, former judge of the ICC and former President of the International Criminal Tribunal for Rwanda (ICTR) and Wilder Tayler, then Secretary General of the ICJ.
Justice Zak Yacoob remarked that “pursuit of justice and pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC. Its not an either or situation. Protecting heads of States from justice whatever they do compromises peace too much.”
Contact
Arnold Tsunga, ICJ Director for Africa, t +27716405926 ; e: arnold.tsunga(a)icj.org
Background
South Africa was among the first States to ratify the Rome Statute of the ICC. It signed the Rome Statute on the day it was adopted, 17 July 1998, and ratified it on 27 November, 2000.
Both during the negotiations preceding the Rome Conference that established the Court in 1998, and at the Conference itself, South Africa played a leading role.
However, the events of June 2015 surrounding the arrival of President Omar al Bashir of Sudan in South Africa appears to have engendered a shift in South Africa’s posture, leading many observers to call into question the country’s commitment to international justice.
The failure by South African authorities to arrest and surrender President al Bashir to the ICC, although he had been indicted by the ICC for war crimes, crimes against humanity and genocide, led to the Southern Africa Litigation Centre (SALC) taking the government to court to compel it to fulfill its obligations both under the Rome Statute and the Implementation of the International Criminal Court Act 27 of 2002 (Implementation Act).
On 19 October 2016, the Minister of International Relations and Co-operation gave notice of South Africa’s intention to withdraw from the Rome Statute.
The Portfolio Committee on Justice and Correctional Services put out a call for submissions to be made to the Parliamentary Portfolio Committee on Justice and Correctional Services on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] to be made by 8th March 2017.
Mar 8, 2017 | Advocacy, Analysis briefs, News
Today the ICJ submitted a brief opposing the current efforts by South Africa to withdraw from the Rome Statute of the International Court.
The brief was submitted in collaboration with a number of South Africa’s leading jurists to the South African Parliamentary Portfolio Committee on Justice and Correctional Services.
The brief was signed by Retired South African Constitutional Court Justices Laurie Ackermann; Richard Goldstone; Johann Kriegler; Yvonne Mokgoro, Kate O’Regan, Zak Yacoob. It was co-signed by Navi Pillay, former United Nations High Commissioner for Human Rights, former judge of the ICC and former President of the International Criminal Tribunal for Rwanda (ICTR). Wilder Tayler, Secretary General, signed on behalf of the ICJ
The ICJ and leading South Africa jurists call on South African Parliamentarians not to pass The Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016].
They also urge South Africa to remain a party to the Rome Statute of the ICC and engage, where appropriate with other African States, in actively pursuing appropriate reforms within the Assembly of State Parties, with a view to making the ICC more effective in advancing the objectives of international justice.
“South Africa should actively encourage other African states to put in place legislation required to empower domestic courts with the ability to try genocide, war crimes and crimes against humanity. South Africa should continue to work constructively with civil society on the advancement of international criminal justice,” the report stated.
“Pursuit of justice and pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC. Its not an either or situation. Protecting heads of States from justice whatever they do compromises peace too much,” said Retired Justice Zak Yacoob.
The report also underscored the danger of an impunity gap if South Africa pulls out of the ICC, as there would be no other effective regional or international forum in which to prosecute the most serious crimes under international law.
“Given the devastating impact of impunity on the rule of law, on development efforts and on society at large, it is vital that South Africa projects itself as a leader in anti-impunity efforts in the region. Pulling out of the Rome Statute of the ICC would crush the best chances that Africa has today to tackle the pervasive impunity that affects the region and would be a most unfortunate move for South Africa and the wider international community,” said Wilder Tayler, Secretary General of the ICJ.
Background
South Africa is one of the earliest parties to the Rome Statute of the ICC. It signed the Rome Statute on the day it was adopted, 17 July 1998, and ratified it on 27 November, 2000. Both during the negotiations preceding the Rome Conference that established the Court in 1998, and at the Conference itself, South Africa played a leading role.
However, the events of June 2015 surrounding the arrival of President Omar al Bashir of Sudan in South Africa appears to have engendered a shift in South Africa’s posture, leading many observers to call into question the country’s commitment to international justice.
The failure by South African authorities to arrest and surrender President al Bashir to the ICC, although he had been indicted by the ICC for war crimes, crimes against humanity and genocide, led to the Southern Africa Litigation Centre (SALC) taking the government to court to compel it to fulfil its obligations both under the Rome Statute and the Implementation of the International Criminal Court Act 27 of 2002 (Implementation Act).
On 19 October 2016, the Minister of International Relations and Co-operation gave notice of South Africa’s intention to withdraw from the Rome Statute.
The Portfolio Committee on Justice and Correctional Services put out a call for submissions to be made to the Parliamentary Portfolio Committee on Justice and Correctional Services on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] to be made by 8th March 2017. The ICJ Brief was filed pursuant to that call.
Contact
Arnold Tsunga, Director of the ICJ Africa Programme, arnold.tsunga@icj.org and +277 164 059 26
RSA-ICC Withdrawal-Advocacy-Analysis Brief-2017 (Analysis brief in PDF)
