Input by Hon LKB Mpumlwana on the statement by the Minister on South Arica's withdrawal from The Rome Statute of the International Criminal Court

3 November 2016

Bone of contention

Somlomo obekekileyo, Malungu abekakileyo nesizwe ngokubanzi Bhotani

Apha ndizama ukusombhulula isishiqi sengxubakaxaka. Ingxam yile, isizwe singene endlwini sicinga ukuba libhotwe, xa siphakathi sihlaselwe zincukuthi, ubugqwangu namangolwane embhala. Xa sigqotsa apho kule ndlu ithi I DA phindelani phakathi Unoothshe!

Let me explain why the ANC decided to instruct its government to pull South Africa out of the ICC as a matter of urgency.

Firstly

ICC emphasizes punitive measures towards the perpetrators of human rights as the only way of solving conflicts irrespective of whether this will harm endeavors to establish permanent peace.

The foreign policy of ANC government, on the other hand, is encored on the other on the values of Ubuntu, patriotism, humility and integrity. One of the pillars of Ubuntu is promotion of peace. Even when we greet we say dumelang khotso, hailale magwala re none. It comes naturally, therefore, to patriotic South Africans that promotion of peace takes precedent to any other form of resolving conflicts. ANC started at home by preferring the TRC method of resolving South African problems. It offered perpetrators of atrocities nobel prices instead of prosecution. Now some of them are attacking this policy based on Ubuntu when it is applied to other people.

This policy brought good results in Sudan, Madagaskar, Lesotho to mention but a few. The president and Deputy President spend sleepless nights away from their families flying all over the world promoting peace among warring parties.

When there is peace there is stability. ANC government's assistance is on demand worldwide and is highly appreciated except of course here at home with the opposition. This makes it clear that they are not patriotic. The people must know that it is in the interest of South Africa to always vote ANC to power. It is important, therefore, to dispel from the outset the assertion that the decision to withdraw from the ICC lacks merit. The ANC reaffirms its support for the primacy of international law and role of international justice in stamping out impunity for mass atrocities. However in doing so, chief among these considerations should be whether such a treaty is in accordance with our existing laws, or policies or if it in fact seeks to supersede or replace them.

In their haste to rush to the courts to challenge any decision taken by the democratically elected government (within its constitutional mandate) the DA that wants to co-govern this country through the courts, is filing for direct access to the Constitutional Court: claiming that Cabinet's notice was issued without a Parliamentary resolution and is thus invalid. This is in line with the DA's custom of sacrificing the national interest at the altar of political expediency.

Secondly,

It has become evident that the UNITED NATION SECURITY COUNCIL has selectively utilised the ICC as a tool to further the political objectives of some of its permanent members instead of the ICC being used as a tool to end impunity and advance international peace and security.

Article 13(b) of the Rome Statute of the International Criminal Court grants this Council the power, acting under Chapter 7 of the UN Charter, to refer situations in which international crimes of genocide, crimes against humanity, and war crimes.may have been committed to the ICC. This is regardless of whether the State in question has ratified the Rome Statute. Three of its members, America, Russia and China are not part of the ICC. The Council has twice referred situations to the ICC - the situations in Darfur, Sudan in 2005 and in Libya in 2011.

There have been several instances of double standards and inconsistencies by some permanent members of the Council in the manner in which they approach issues related to the ICC. The Council has failed to act in several situations where grave international crimes have occurred (in Palestine, Afghanistan and Iraq for example). The fact that 3 of the P5 have not ratified the Rome Statute and the added fact that they have veto powers as permanent Council members means that they are in effect insulated from the court. They have also protected their own allies from the ICC, for example the situation in Palestine would not be referred to the ICC as the US would probably block it. Double standards.

It should be noted that the referral resolutions, at the insistence of the United States (which is not a party to the Rome Statue), also state that expenses incurred in connection with the referral are to be covered by parties to the Rome Statute or states that have contributed voluntarily. The UN would not cover any of the expenses. Thus States not parties to the Rome Statue, use the ICC selectively for political purposes, but do so without incurring any material costs to themselves and to advance their geopolitical interest.

Another example of the Council's inconsistency is that in the Libya case, the ICC issued a warrant of arrest for Saif al-Islam Gaddafi, the son of Muammar Gaddafi, who remains in the custody of Libyan officials who refuse to hand him over to the court, despite a binding Security Council Resolution (resolution 1970) to this effect. The Council has done nothing to enforce its own decision by calling on the Libyan authorities to hand him over to the ICC.

Thirdly the ANC government regards South Africa as an African country and not a European country and that it is bound by resolutions made by continental structures like the AU. This government is championing an African continent, which is prosperous, peaceful, democratic, non-racial and united and which aspires to a world that is just and equitable. It is destabilizing our foreign policy as it relates to our policy on conflict prevention , peaceful resolution to conflict and negotiations - The case of Sudan and Cote D Voire are cases in point, taking back all the progress we are making - Justice cannot Trump Peace- it works in an ivory tower not taking into account the reality of the the political situation on the ground and the principle of at times sacrificing eye for an eye criminal justice for peace and development . In the case of Al Bashir it was not the Sudanese that referred the case to the ICC , it was referred by the UNSC. In fact the leaders of South Sudan such as Salva Kir himself have said that Bashir should not be charged in order to further the peace negotiations with South Sudan. President Mbeki has publicly confirmed this. Similarly in the case of Cote De Voire after Gbagbo was removed from power in election where the opposition was supported and some would argue helped and rigged by the French with nation divided as the outcome was very close the West (led by France) pushed for Gbagbo to also be charged by the ICC undermining our efforts to develop a nation building and reconciliation effort that would include supporters of Gbagbo.

Similarly it could be argued that all our other African peace and stability efforts would be undermined if the ICC decided to prosecute current and former heads of States whilst we as Africa through the AU and SADC and as South Africa were and are engaged in. For example our peace efforts in Madagascar would not have been successful and Madagascar would not have undergone a democratic election if either of the 2 Former Heads of States Ravololmana and Rajoelina had been charged by the ICC as it would have undermined our mediation efforts and a peaceful negotiated settlement.

The ICC cannot act but historically has acted in isolation and in an ivory tower undermining our foreign policy objectives. In addition imagine that the UNSC or civil society members had referred De Klerk to the ICC ( had it been around at the time ) during our own negotiations to end Apartheid for Crimes Against Humanity. As South Africa we would not have then been able to have reached a negotiated settlement which is based on compromises and our peaceful and successful transition to democracy. No sitting President or Head of State will negotiate himself out of power if he is not given certain guarantees which should be determined by the people of their country themselves. Legal Justice of an eye for eye cannot always trump peace

3) Our Diplomatic Interests being compromised It is creating tensions in our diplomatic relations with countries of the south and Africa in particular and not serving our own national interests

4) Its credibility is being questioned by most countries of the South - Justice must not only be done it must seen to be done because of its workings it prosecuting only Africans, Afro pessimistic arrogance, refusing to listen and negotiate with our country incases such Bgagbo and Bashir, it's hypocritical intuitional mechanisms such as UNSC referrals, being abused by the west France and US in particular.