A sign of the times : South Africa’s politico-legal retrogression as illustrated through the intention to withdraw from the Rome Statute

• Author: Lee Stone
• DOI: 10.10520/EJC-116da9e43d
• Published date: 01 October 2018
• Date: 01 October 2018
• Record Number: sapr1_v33_n1_a2
• Pages: 1-32

Article

Southern African Public Law

https://doi.org/10.25159/2522 -6800/2960

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2960 | 32 pages

© Unisa Press 2018

A Sign of the Times: South Africa’s Politico-legal

Retrogression as Illustrated through the Intention to

Withdraw from the Rome Statute

Lee Stone

Department of Public, Constitutional and International Law, School of Law,

University of South Africa

Email: stonel@unisa.ac.za

Abstract

Sending the unequivocal message that perpetrators of crimes against humanity,

genocide and war crimes would be prosecuted, South Africa was an active

participant in the negotiations towards adopting the Rome Statute Establishing

the International Criminal Court (ICC). Indeed, South Africa was the twenty-

third state to ratify the treaty and domesticated it in the form of the

Implementation of the Rome Statute of the International Criminal Court Act 27

of 2002. Pursuant to the obligations undertaken by South Africa, it was

incumbent on the state to arrest and surrender to the ICC the President of Sudan,

Omar Al Bashir in June 2015, on the strength of two international arrest

warrants issued against him by the ICC, when he attended the African Union

Summit in South Africa. Instead, not only was Al Bashir’s sudden departure

from South Africa facilitated by South African officials in contempt of a court

order prohibiting same, but South Africa also deposited its instrument of

withdrawal from the Rome Statute with the United Nations Secretary General

soon afterwards. It is against this contextual background that South Africa’s

failure to comply with the rule of law is assessed, with the evidence indicating

that political considerations often outweigh legal obligations.

Keywords: Separation of powers; rule of law; political will; state sovereignty;

International Criminal Court; international criminal law; enforcement

2

Introduction

Shklar’s critique that ‘law does not by itself generate institutions, cause wars to end, or

states to behave as they should’1 epitomises the conundrum that is South Africa’s

relationship with the International Criminal Court (ICC). Locating the arguments

pertaining to South Africa’s intention to withdraw from the Rome Statute Establishing

the ICC (Rome Statute) within their proper context, it is necessary to highlight that

South Africa was one of the first states to take an active part in the negotiations towards

the adoption of the Rome Statute.2 So serious was South Africa’s commitment that it

was the 23rd state party to sign the Rome Statute on 17 July 1998, then to ratify it on 27

September 2000.3 Shortly after that, in July 2002, national legislation, appropriately

named the ‘Implementation of the Rome Statute of the International Criminal Court Act

27 of 2002’ (Implementation Act), was promulgated, removing any ambiguity about

South Africa’s intention to comply fully with the Rome Statute. South Africa’s decision

to ratify and implement the Rome Statute was underpinned by the history of crimes

against humanity that had been perpetrated against the majority of South Africans

during the apartheid period. Consequently, the message conveyed was that South Africa

would not condone crimes against humanity elsewhere in the world.

The factual scenario in the February 2017 judgment in the matter of the Democratic

Alliance against the Minister of International Relations & Others4 (hereafter referred

to as the ‘2017 judgment’) dates back to the year 2003. Omar Hassan Al Bashir rose to

power in the Republic of Sudan through a bloodless coup d’état in June 1989. In his

capacity as president he was implicated in the perpetration of international crimes,

including genocide and crimes against humanity5 from 2003 until 2008. The crimes

resulted in the deaths of at least 300 000 men, women and children and also the

displacement of more than three million Darfuris. Collin Powell, the former Secretary

of State of the United States, alleged that international crimes had been committed.

Powell invoked the provisions of Article VIII of the 1948 Genocide Convention, which

authorised state parties to call upon the United Nations (UN) to take action in terms of

the provisions of Chapter VII of the UN Charter, as read with Article 13 of the Rome

Statute, in order to prevent and suppress acts of genocide or any other relevant acts.

Consequently, the UN Security Council adopted Resolution 1564 on 18 September

20046 to set up an International Commission of Inquiry to investigate the reports of the

1 Judith Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press 1986) 131.

2 Lee Stone, ‘Implementation of the Rome Statute in South Africa’ in Chacha Murungu and Japhet

Biegon (eds), Prosecuting International Crimes in Africa (Pretoria University Law Press 2011) 305.

3 Stone (n 2) 306.

4 Democratic Alliance v Minister of International Relations and Cooperation & Others (Council for the

Advancement of the South African Constitution Intervening) 2017 (3) SA 212 (GP); [2017] 2 All SA

123 (GP); 2017 (1) SACR 623 (GP).

5 Stone (n 2) 325–326.

6 ‘UNSC Resolution 1564, Sudan’ <http://www.cfr.org>Conflict>.

3

massive and widespread violation of international humanitarian law and human rights

law in Darfur.7

The findings of the Commission of Inquiry prompted the members of the Security

Council to vote on whether the situation in Darfur should be referred to the ICC for

investigation; the vote in favour of a referral prevailed. Why the Security Council’s vote

is significant is that although Sudan signed the Rome Statute on 8 September 2000, the

calculated and deliberate decision made was not to deposit its instrument of ratification

of the Rome Statute.8 Accordingly, the ICC undertook the investigation into the conduct

of a non-party state, which was permissible in terms of Article 13(b) of the Rome

Statute. The ICC issued the first warrant of arrest bearing Al Bashir’s name on 4 March

2009.9

In May 2009 Al Bashir was invited to President Jacob Zuma’s inauguration in Pretoria,

South Africa. Pursuant to the express provisions of section 8(2) of the Implementation

Act, had Al Bashir entered South African territory to attend the inauguration, the

relevant authorities would have been duty bound to arrest him and, on the basis of

complementarity,10 a central feature of the Rome Statue, South Africa would have been

obliged to prosecute him in South Africa. If, however, South Africa was ‘unable or

unwilling’11 to prosecute Al Bashir, he would have had to have been surrendered to the

ICC for prosecution. Al Bashir declined the invitation to attend the inauguration.

7 UNSC (n 6).

8 William Schabas, An Introduction to the International Criminal Court (4 edn, Cambridge University

Press 2011) 49–54.

9 The Prosecutor v Omar Hassan Al Bashir, Decision on the Prosecution’s Application for a Warrant of

Arrest against Omar Hassan Al Bashir, Case No IC C-02/05-01/09, Public Redacted Version, Pre-Trial

Chamber I, 4 March 2009 <http://www.icc.cpi.int/darfur>. See also Editorial Staff, ‘Profile: Sudan

Omar al-Bashir’ BBC News (London) <http//www. bbc.com/news/world-africa-1610445>. As an

indirect co-perpetrator, the ICC charged Al Bashir with five counts of crimes against humanity, to wit,

murder, extermination, forcible transfer, torture and rape; two counts of war crimes, on the grounds of

intentionally directing attacks against the civilian population or against individual civilians not taking

part in the hostilities; pillage; and three counts of genocide by killing, causing serious bodily or mental

harm and deliberately inflicting on each target group conditions calculated to bring about the group’s

physical destruction.

10 Articles 1 and 17 of the Rome Statute clearly provide for complementarity. Complementarity means

that the state is required to exercise its criminal jurisdiction over those responsible for international

crimes. See Benson Olugbuo, ‘Positive Complementarity and the Fight against Impunity in Africa’ in

Murungu and Biegon (n 2) 251, quoting Markus Benzing, ‘The Complementarity Regime of the

International Criminal Court: International Criminal Justice between State Sovereignty and the Fight

against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 592. See also Robert Cryer

and others, An Introduction to International Criminal Law and Procedure (Cambridge University

Press 2007) 127; and Michael Newton, ‘Comparative Complementarity: Domestic Jurisdiction

Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military LR 20, 26.

11 Stone (n 2) 308.