Executive statement to the National Assembly in terms of Rule 133(1) - Minister M Masutha, MP, Minister of Justice and Correctional Services
3 November 2016
Honourable Members of Parliament
Ladies and Gentlemen
On 28 October, 2016, the General Assembly of the United Nations, with 178 votes, elected South Africa to serve on the Human Rights Council, the United Nations body responsible for the promotion and protection of all human rights around the globe. This vote came 9 days after South Africa lodged, in terms of Article 127 of the Rome Statute of the International Criminal Court, with the Secretary-General of the United Nations, notice of its intention to withdraw from the Rome Statute.
South Africa's re-election, which does not appear to have received much media attention, is an affirmation of the international community's high regard for South Africa's constitution, its Bill of Rights, its constitutional bodies which strengthen democracy, its independent judiciary and for its tireless efforts to promote peace and reconciliation, its respect for human rights; its efforts to eliminate all forms of impunity and to promote development on the African continent and elsewhere.
The decision to withdraw was not taken lightly by the Cabinet. The decision was made after a very careful consideration of all relevant issues, including South Africa's obligations to the ICC in terms of the Rome Statute itself, its international standing, the requirements of the African Union of which South Africa is a member and the role which South Africa plays in ensuring that conflicts are resolved peacefully on the African continent and elsewhere.
Rome Statue entered into force on 1 July 2002 124 State Parties, 34 from Africa, South Africa Party since entry into force.
An extended Cabinet Committee took a decision on 5 May 2016 that South Africa would consider withdrawing from the Rome Statute. On 19 October 2016 Cabinet took the decision that South Africa will withdraw from the Rome Statue by immediately submitting the Instrument of Withdrawal to the Secretary-General of the United Nations. In accordance with the relevant provisions of the Rome Statute, South Africa's withdrawal will take effect one year after the Secretary-General has received the notification.
The decision to withdraw from the Rome Statue was not taken lightly and out involvement with the ICC has a particular history. South Africa played a significant role in the international negotiations on the establishment of the International Criminal Court ("the ICC") and was one of the first signatories to the Rome Statute. The Rome Statute was enacted in South Africa with the adoption of the Implementation of the Rome Statute of the International Criminal Court Act, No. 27 of 2002, thus reaffirming South Africa's commitment to a system of international justice.
South Africa's commitment to the protection of human rights and the fight against impunity is unwavering despite its decision to withdraw. This commitment was forged in the struggle for liberation against the inhumanity of colonialism and apartheid and based on the values of our nation, namely human rights, freedom and dignity as aspired to in the Freedom Charter which was adopted by the people of South Africa in 1955 and enshrined in our Constitution.
South Africa has always and will always condemn in the strongest terms human rights violations and international crimes wherever they may occur and call for the accountability of those responsible.
South African cannot and will not be silent in the face of serious flaws in the practices of the ICC and will not join the chorus of uncritical loyalty. It is time to ask ourselves whether the ICC as part of the international criminal justice system is actually assisting the world to indeed make sure that there is no impunity against the crimes, genocide and crimes against humanity.
South Africa, from its own experience, has always expressed the view that to keep peace one must first make peace. South Africa is involved in international peacekeeping missions in Africa and is diplomatically involved in inter-related peace processes on a bilateral basis as well as part of AU mandates.
South Africa role in peacekeeping on the African continent has worked tirelessly with other African nations to establish the African Union, with a strong focus on promoting human security, peace and stability on the continent which is today reflected in the principle of intervention in cases of war crimes, genocide and crimes against humanity in the Constitutive Act of the African Union.
In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive. The reality is that in an imperfect world we cannot apply international law with an idealistic view that strives for justice and accountability and thus competing with the immediate objectives of peace security and stability.
Part of the challenges with the ICC in 2015, South Africa found itself in the unenviable position where it was faced with conflicting international law obligations which had to be interpreted within the realm of hard diplomatic realities and overlapping mandates when South Africa hosted the 30th Ordinary Session of the Permanent Representatives Committee, the 27th Ordinary Session of the Executive Council and the 25th Ordinary Session of the Assembly of the African Union ("the AU Summit"), from 7 to 15 June 2015. The reality was that the ICC on 4 March 2009 and 12 July 2010, issued two warrants of arrest against Omar Al-Bashir. These warrants of arrest were transmitted to States Parties and members of the United Nations Security Council, for execution. South Africa was one of the countries to which a request for arrest and surrender was transmitted.
South Africa was thus faced with the conflicting obligation to arrest President Al-Bashir under the Rome Statute, the obligation under customary international law which recognises the immunity of sitting heads of state, as well as the obligation to the AU to grant immunity in terms of the Host Agreement and the General Convention of the Privileges and Immunities of the Organization of African Unity of 1965.
There is also no clarity on the nature and scope of the provisions on the immunities of Heads of State in terms of international customary law and the Rome Statute. This lack of clarity is reflected by the inconsistencies in the findings of the Pre-Trial Chambers of the ICC in the Malawi and Chad cases, on the one hand, and the DRC case on the other hand.
Sudan is a non-State Party to the Rome Statute that continues to be governed by customary international law. Arrest of such a person by a State Party pursuant to its Rome Statute obligations, may therefore result in a violation of its customary international law obligations.
In order to address this untenable position, South Africa, prior to the AU Summit, used the mechanism of consultation with the ICC to find a resolution, available under Article 97 of the Rome Statute, the first State Party ever to do so. The reason for using the mechanism was in order to engage the ICC by explaining the difficulty faced by South Africa in this instance. However, this was to no avail. Although there are no procedures to guide Article 97 consultations, South Africa was deeply disappointed that the process, was turned into a judicial process.
The experience with the ICC left South Africa with the sense that its fundamental right to be heard was violated.
South Africa is of the view that to continue to be a State Party to the Rome Statute will hamper its ability to effectively engage with countries in which serious conflicts occur.
It will compromise South Africa's efforts to promote peace and security on the African Continent and to play an essential part in international peacekeeping missions in Africa and in related peace processes.
The credibility and acceptability of the ICC to become the universally accepted institution of justice that will ensure the ideal of universally accepted principle of equality before the law that was the expectation of South Africa when it became a State Party, has not been realised and is under threat.
For as long as three of the permanent members of the Security Council are not State Parties to the Statute the credibility of the ICC will be questioned.
The Security Council has also not played its part in terms of Article 16 of the Rome Statute where the involvement of the ICC will pose a threat to peace and security on the African continent.
There are perceptions of inequality and unfairness in the practice of the ICC that do not only emanate from the Court's relationship with the Security Council, but also by the perceived focus of the ICC on African states, notwithstanding clear evidence of violations by others
On the Way Forward, South Africa has always believed that countries should have strong national legal systems that can ensure accountability and prevent impunity from these crimes. In this regard, South Africa has various statutory measures on its statute books to combat international crimes that ensure accountability and will strengthen these as needed.
International courts can only be complementary to national legal systems. We should work diligently to ensure that all countries have the necessary measures in place to prevent impunity and that justice is not simply outsourced to international courts. South Africa has never viewed the ICC in isolation, but as one element in a new system of international justice, law and governance. It must therefore be the last resort to protect human rights and to fight impunity.
South Africa also believes that the African Court of Justice and Human Rights in Arusha, the Republic of Tanzania, must play a crucial role in the fight against impunity on the African continent. It must therefore be strengthened and its criminal chamber must become operational as soon as possible. In conformance with statutory customary international law, Article 46 of the Malabo Protocol provides for immunity from prosecution for AU Heads of State or Government based on their functions, and during their tenure in office. This is in line with the provisions of the Diplomatic Immunities and Privileges Act 2001.
There are however still a number of problematic issues in respect of the African Court and specifically the Malabo Protocol that need to be attended to as AU member States have, as yet, not ratify the said Protocol. Once operational, the African Court will provide a viable mechanism for ensuring that no impunity exists for gross violations of human rights on the African continent in cases where national jurisdictions are unable or unwilling to hold those responsible accountable. South Africa has prioritized the review of the Malabo Protocol to address the concerns of African States and will advance this issue through the AU Summit for it to instruct the STC on justice to start a review process.
South Africa will also continue its active involvement in the AU process that was established to deal with issues related to the ICC. South Africa is a member of the AU Open-Ended Ministerial Committee on the ICC established by the July 2015 AU Summit chaired by Ethiopian Foreign Minister. South Africa represents the South on the Bureau.
The mandate of the Committee is to develop a comprehensive strategy, including collective withdrawal from the ICC, to inform the next actions of AU Member States also party to the Rome Statute of the ICC. The AU Legal Counsel has prepared a document on a strategy for a common withdrawal approach by AU members. The Committee decided to meet with the UN Security Council in New York to raise specific issues including the suspension/withdrawal of proceedings against President Omar Al-Bashir of Sudan and to obtain support for the proposed African amendments to the Rome Statute. The AU at its last Summit decided that this meeting must take place before the next AU Summit in 2017.
In withdrawing from the ICC, South Africa wishes to reiterate its commitment to human rights and the fight against impunity. Its history of fighting and defeating colonialism and apartheid affirms its commitment to continue to fight against any form of impunity for atrocities perpetrated anywhere in the world
Department of Justice has prepared the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill which has been certified. That Bill will be tabled in Parliament in accordance with Rule 133(4) of the Rules of the National Assembly and will be processed as directed by the National Assembly.
The Repeal Bill contains transitional and savings clauses which will ensure that during the period of one year, South Africa will be bound by its obligations in terms of the Rome Statute and will have the legal mechanisms to cooperate fully with the ICC.
The Cabinet wishes to state categorically and unambiguously that South Africa will not become a safe haven for international fugitives, especially those who have committed crimes against humanity and other equally serious crimes. For that reason, an extensive review of our legislation has been undertaken to consider whether some of our laws need to be amended and whether new laws to deal with serious violations of human rights need to be enacted by Parliament.
Amongst other things, Extradition Act and the International Cooperation in Criminal Matters Act will be amended without delay.
The Amendment Bills, which will ensure that South Africa is able to extradite various categories of persons to international tribunals like the ICC and to cooperate fully with such tribunals, will be tabled in Parliament shortly. An amendment to the Criminal Procedure Act will also be proposed to make provision for the prosecution of the crime of genocide. Alternatively, a genocide Bill will be tabled. This work is being undertaken in accordance with a Cabinet decision to this effect.
The Cabinet has also directed that African countries and the AU must be engaged in order to ensure that the African Court on Human and People's Rights will become fully operational without any delays. South Africa will take steps to ratify the Protocol of that court as soon as possible.
We remain committed and will continue to be committed to eradicating impunity anywhere in the world, but particularly here on the African continent. We intend to enhance our ability to prosecute perpetrators of gross human rights in South Africa. We are on the side of the victims and shall remain on the side of victims at all times. At the same time, South Africa will actively promote, peace, stability and development in Africa and will take any steps deemed necessary to bring about gender equality and to protect the rights of all vulnerable groups in Africa and elsewhere.
Section 231 specifically empowers the national executive to conclude international agreements, while Parliament must either approve these agreements or have the agreements simply tabled in Parliament, depending on the type of agreement. In respect of the Rome Statute, the national executive may take steps to withdraw from the Rome Statute and that Parliament's role is to consider a Bill to repeal the Implementation of the Rome Statute of the International Criminal Court Act.
Given the public importance of the matter, the Cabinet directed that the notice of withdrawal must be tabled in both the National Assembly and the National Council of Provinces. This will give the two houses an opportunity of considering the notice to withdraw with a view to approving South Africa's withdrawal from the ICC.
As indicated the Repeal Bill and the notice of withdrawal will be tabled in accordance with Rule 133(4) of the Rules of the National Assembly. I request the National Assembly to resolve how the Bill should be dealt with. I request that the National Assembly similarly considers how the notice of withdrawal from the ICC should be dealt with.