Justice Minister Michael Masutha will, in the next few days submit to Parliament Government’s notice of withdrawal from the Rome Statute and introduce an International Crimes Bill to replace it.
He was speaking on the sidelines of the 16th session of the Assembly of States Parties to Statute in New York where he reaffirmed Pretoria’s position to withdraw from the International Court.
In July, three Judges of The Hague Court found that South Africa’s obligations to arrest Sudan’s President Omar al-Bashir superseded immunities afforded a sitting head of state.
It’s a meeting of States who are signatory to the Rome Statute, one that provides management oversight as the legislative body of the ICC and where South Africa again accused the Pre-trial Chamber of further clouding the issue around Bashir’s non-arrest.
“Not much has changed since we announced our intention to withdraw from the Rome Statute. The Court itself in its judgment in the Hague a few months ago gave us a further reason why we believe that indeed there is a problem in the manner in which this Statute is being interpreted and applied, all the more reason why we feel we cannot sustain a situation where our commitment to promoting peace in the African continent especially and at the same time, having to adhere to our obligations under the Rome Statute as its being currently interpreted and applied, are in conflict with each other and we have to make a choice,” says Masutha.
At issue are two competing Articles in the Statute – Article 27 that says no person, even a head of state shall be exempt from criminal responsibility and where immunities shall not bar the court from exercising jurisdiction.
Article 98 of the same Statute says the Court may not proceed with a request for surrender which would require the requested State, in this instance South Africa, to act inconsistently with its obligations under international law with respect to diplomatic immunity.
“There is international law, international customary law dealing with diplomatic immunity which grants immunity from prosecution of a sitting head of state or any other person who enjoys such diplomatic immunity under that law. South Africa is a party to that and many other instruments that creates that legal framework and the Rome Statute itself in Article 98 explicitly says that effectively. Article 27 that says immunity will not apply, does not apply to a State party which is not party to the Rome Statute, which Sudan happens to fall in that category, ” the Minister elaborates.
And while the pre-trial chamber affirmed Article 27s supremacy over 98, Masutha does not believe it settled the matter definitively, particularly on the question of Sudan’s non-membership of the Court and the role of the Security Council in placing Khartoum under the Court’s jurisdiction.
“The court, as I understand it, is saying yes Article 98 applies, yes article 27 applies but don’t forget that the Security Council under the UN Charter has superimposing authority to trump all of that and has in fact done so in this instance. We’re saying if that’s what the Security Council clearly wanted to do, it could have done so explicitly on an important issue like this. The court itself in its own words, uses the word implicit in the resolution and it derives clarity from the word implicit, I mean the word implicit itself means that it is a matter of interpretation,” adds Masutha.
Masutha says the new legislation he’ll introduce in Parliament to replace the Rome Statutes domestication in South Africa law, will grant South African courts extra-territorial jurisdiction to try cases even if atrocities were committed elsewhere.
