‘Rome Statute hinders SA ability to offer diplomatic immunity’ – Masutha explains withdrawal from ICC

The implementation of the Rome Statute of the International Criminal Court hinders South Africa’s international relations with foreign countries‚ particularly with those in which serious conflicts occur.

That is according to Justice Minister Michael Masutha‚ who on Friday confirmed Cabinet’s decision to withdraw its membership of the International Criminal Court (ICC).

“This act and the Rome Statute of the ICC compel South Africa to arrest to arrest persons who may enjoy diplomatic immunity under customary international law‚ but who are wanted by the ICC for genocide‚ crimes against humanity and war crimes and to surrender such persons to the ICC‚” he said.

Masutha said South Africa is compelled to do this even in those countries where the government is “actively involved” in promoting peace‚ stability and dialogue.

“The implementation of the Rome Statute of the International Criminal Court Act‚ 2002 is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act‚2001‚” Masutha said.

He said his department will soon table a bill proposing the repeal of the Implementation of the Rome Statute of the International Criminal Court in Parliament.

“The effect of withdrawal from the Rome Statute as well as the repeal of the Implementation Act thus completes the removal of all legal impediments inhibiting South Africa’s ability to honour its obligations relating to the granting of diplomatic immunity under international law as provided for under our domestic legislation.”

The Democratic Alliance on Friday described decision to withdraw from the ICC as “astounding”.

The party’s chief whip in the National Assembly‚ John Steenhuisen‚ ‏tweeted: “Statute of Rome was codified into RSA law by act of Parliament‚ Mashabane cannot simply withdraw without parliamentary approval- astounding!”

Human Rights Watch (HRW) shared Steenhuisen’s view‚ and said: “questions remain about whether the government even acted in line with its own laws for leaving the court”.

HRW’s Dewa Mavhinga criticised the move‚ saying: “South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes.

“It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored.”

News of the withdrawal came after an “Instrument of Withdrawal” emerged that was sent by International Relations and Cooperation Minister Maite Nkoana-Mashabane notifying the United Nations (UN) of the country’s intention to pull out of the ICC.

In the missive‚ Nkoana-Mashabane said the withdrawal would take effect “one year after the receipt of the notification”.

She also said that South Africa “has found its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given the ICC of obligations contained in the Rome Statute”.

Nkoana-Mashabane noted that “in complex and multi-faceted peace negotiations and sensitive post-conflict situations‚ peace and justice must be viewed as complementary and not mutually exclusive”.

SA was “committed to fight impunity and to bring those who commit and to bring those who commit atrocities and international crimes to justice”.

The country’s intention to withdraw from the statute first emerged as government was defending its failure to take steps to detain Al-Bashir during his visit to South Africa in June 2015‚ when there was an ICC warrant for his arrest‚ and despite a high court ruling that it do so.

Nkoana-Mashabane’s letter said that “SA as a founding member of the African Union promotes international human rights”.

But‚ earlier this year‚ South African Human Rights Commission chairman Lawrence Mushwana wrote to Nkoana-Mashabane‚ saying that in the absence of an alternative to holding African perpetrators of human rights violations and international crimes accountable for their actions‚ an exit from the ICC will not bode well for the rule of law.

Mushwana‚ at the time‚ said Al-Bashir has been charged by the ICC for crimes against humanity‚ war crimes and genocide‚ allegedly perpetrated against his own people.

He said the attempt to ensure greater accountability by the establishment of the African Court of Justice and Human Rights did not go far enough.

While the 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights conferred criminal jurisdiction to the court‚ the protocol also granted immunity to heads of states and other senior officials.

“The effect of this immunity is that those guilty of the most grossest violations of human rights and the perpetration of international crimes will not be held accountable for their actions‚ for as long as they remain in power‚” Mushwana wrote.

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