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
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)
Feb 27, 2017 | Multimedia items, News, Video clips
The ICJ continues it’s monthly profile series on women’s rights defenders with an interview with ICJ Commissioner and International Criminal Court Justice Sanji Monageng.
Justice Monageng told the ICJ that her interest in women’s rights began when she went through her own divorce and encountered the injustices that Botswana women suffered. This motivated her to pursue a career in law and align herself with the women’s rights movement that was establishing itself in southern Africa.
She became the Founder and Chief Executive of the Law Society in Botswana, a Magistrate in Botswana and High Court Judge in the Gambia and Swaziland. She was elected a Commissioner of the African Commission on Human and Peoples’ Rights and served as Chair of the Commission. She has been a Judge of the International Criminal Court since 2009 and served as First Vice-President between 2012-2015.
Justice Monageng commented that in Botswana, and elsewhere in southern Africa, women were at a serious disadvantage when it came to access to justice because of cultural, customary and religious restraints as well as economic inequality.
For example, up until only a few years ago women in Botswana were unable to inherit their parent’s property, on the basis of customary law, but a progressive judge was not afraid to challenge this and when this judgement was supported this led to a real change in the lives of women.
Sanji spoke of the importance of a strong civil rights movement and noted how instrumental this had been in Africa in leading the agenda to promote progressive rights protection for women. The African Commission on Human and Peoples’ Rights has a Special Rapporteur on Women and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (the Maputo Protocol) has been hailed as the best in the world.
At the International Criminal Court (the ICC) there is a coalition of some 2,500 NGOs that work very closely with the court and have been instrumental in driving key aspects of the Court’s work including addressing sexual violence and ensuring victim and women’s participation. ‘Without civil society, without NGOs, and we have witnessed very credible civil society organisations’, Sanji says, ‘we cannot move.’
However, Justice Monageng commented that the ICC has not done very well in prosecuting sexual and gender based violence so far but acknowledges that the Court is still young and that progress is being made.
The new Chief Prosecutor, Fatou Bensouda, has undertaken a lot of endeavours to promote this aspect of the Court’s mandate such as creating a policy on sexual violence and gender issues, establishing a dedicated unit to address these crimes and appointing the highly qualified Brigid Inder as her Special Gender Advisor. Sanji commented that it is now evident in the cases she sees as a judge that a lot more attention is being paid to sexual violence.
Justice Monageng suggests that young women interested in defending women’s rights must internalize the importance of human rights. They should start associating themselves with women’s rights organizations even if only in a small way.
Defending women’s rights is difficult work and those that are interested in this must be prepared for criticism, and other unpleasantness but this work needs to be done. ‘The world is upside down and human rights are forgotten in most instances’, Sanji says, so she looks forward to girls joining the women’s rights movement.
Watch the interview:
The series of profiles introducing the work of ICJ Commissioners and Honorary Members on women’s rights was launched on 25 November 2016 to coincide with the International Day to Eliminate Violence against Women and the first day of the 16 Days of Activism Against Gender-Based Violence Campaign.
Feb 23, 2017 | News
The ICJ has welcomed the decision by The Gambia to rescind their notice of withdrawal from the International Criminal Court (ICC), as well as a decision of the South African High Court to nullify a similar withdrawal notice by South Africa.
On 16 February 2017, The Gambia filed a notice with the United Nations (UN) Secretary General that it was withdrawing its previous notice of denunciation from the Rome Statute for the ICC made last year by the Government of former President Yahya Jammeh.
The South African High Court ruled on 22 February 2017 that the withdrawal by South Africa was unconstitutional and invalid, as the Government had bypassed the Parliament in taking its decision. The ICJ urges the South African government to promptly comply with the High Court order and to abandon any further moves at withdrawal.
The ICJ also calls on government Burundi to reverse similar moves to withdraw Burundi from the jurisdiction of the ICC
“The ICC is a bedrock component of the architecture developed by the international community over decades to tackle impunity for the most serious crimes and gross human rights violations occurring throughout the world,” said Arnold Tsunga, Director of the ICJ Africa Program.
“African States have been the largest bloc of support for the ICC. Notwithstanding recent public rhetoric at the African Union, African States are in a position to show global leadership and reaffirm their commitment to the ICC and international justice,” he added.
The ICJ considers that while there are aspects of the ICC that require reform, there is at present no viable framework to combat impunity for genocide, war crimes, crimes against humanity and aggression other than the ICC.
“African Member States have a great potential to push for appropriate reform of the ICC with a view to tackling impunity globally,” said Arnold Tsunga.
Contact
Arnold Tsunga, t: +27716405926 ; e: arnold.tsunga(a)icj.org
