Today, July 17, 2018, also known as the Day of International Criminal Justice, marks the 20th Anniversary of the adoption of the Rome Statute, the founding treaty for the International Criminal Court (ICC).
The Rome Statute established the Court as a tribunal with jurisdiction to prosecute the very worst international crimes: genocide, crimes against humanity and war crimes. The Court operates as a fail-safe when domestic prosecutions are unavailable or insufficient. The Court’s jurisdiction only applies when domestic courts are unwilling or unable to pursue accountability. The Court can receive referrals on situations to investigate from State Parties to the Rome Statute and the United Nations Security Council.
South Africa was a founding member of the ICC as one of the first countries to sign and ratify the Rome Statute. In 2002, South Africa passed the Implementation of the Rome Statute of the International Criminal Court Act, domesticating South Africa’s legal obligations under the Rome Statute and greatly expanding the ability of South African courts to hold perpetrators of international crimes accountable.
However, in recent years, South Africa has had a rocky relationship with the Court. In 2015, President Omar al Bashir of Sudan visited South Africa. Litigation, initiated by SALC, sought to compel the government to fulfil its obligations under the Rome Statute and South African law and arrest him. Contrary to the High Court order in the matter, al Bashir was allowed to leave the country. On 15 March 2015, the Supreme Court of Appeal ruled that the government’s failure to arrest al Bashir was unlawful. On 6 July 2017, the Pre-Trial Chamber of the ICC also found that South Africa has failed in its obligations to cooperate with the ICC in respect of the al Bashir case.
In 2016, the President deposited South Africa’s Notice of Withdrawal with the United Nations, signalling South Africa’s withdrawal from the ICC. However, this action was challenged in court, and declared unlawful as it required parliamentary approval. The government has persisted with the attempt to withdraw from the ICC. In 2017, the International Crimes Bill was introduced to Parliament and now is before the Portfolio Committee on Justice and Correctional Services. This Bill is a huge step back for South Africa in its role in combatting impunity and preventing South Africa from becoming a safe haven for perpetrators of international crimes, as it, among other things, greatly expands who gets immunity from arrest and prosecution.
South Africa’s criticisms of the Court include a perceived “African bias” by the Court and conflicting international obligations regarding head of state immunity and the obligation to comply with ICC arrest warrants.
However, recently statements by International Relations Minister Lindiwe Sisulu have demonstrated South Africa’s potential willingness to continue to engage with the Court or at least keep the debate on ICC withdrawal open. There does however appear to be a conflict between the Minister of international relations and the Justice Minister Michael Masutha, who seems determined to push the Bill and South Africa’s fresh attempt at withdrawal through Parliament.
The International Criminal Court is by no means a perfect institution; however, on this Day of International Criminal Justice, we should remember the purpose of the ICC: ensuring that victims of international crimes are able to access justice.
There are eleven situations under investigation at the Court currently and the Court is conducting even more preliminary examinations. This means that there are thousands of victims of crimes committed in Sudan, the Central African Republic and Democratic Republic of the Congo, to name but a few, currently waiting for justice to be delivered for the perpetration of some of the worst crimes imaginable.
Transnational courts and tribunals are a critical tool to achieve justice and accountability when domestic courts are insufficient and there is no other recourse. This day in history is an opportunity for South Africa to strengthen such an important institution and be a leader in bolstering other domestic and regional mechanisms (such as the African Court of Justice and Human Rights) used to combat impunity.
