There is no legal basis for the government’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC), the high court in Pretoria heard on Monday.
“The heart of the reasons that the state, the government, is taking the steps of having the withdrawal is unsupported by legality. It is an error of law… therefore it is substantively irrational,” advocate David Unterhalter SC, representing the Helen Suzman Foundation, told a full Bench of three judges.
He argued there was “an overriding constitutional obligation” for South Africa to prosecute controversial Sudanese President Omar al-Bashir when he visited Pretoria in 2015.
The HSF was supporting the DA’s court application to have the process of withdrawing from the ICC, which was initiated by government, halted.
Unterhalter said in Bashir’s case, where a head of state is wanted for international crimes, the diplomatic immunity falls flat.
“Our constitution, as a matter of constitutional supremacy, requires that we pursue that. We should always take action against such heinous crimes and we prosecute them as a matter of our domestic law,” Unterhalter told the court.
South Africa believed it was unfairly treated by the ICC when it consulted the court over the visit of Bashir to South Africa in June last year.
Pretoria asked the ICC to exempt it from its requirement to arrest Bashir because it said it should enjoy immunity as a sitting head of state attending an African Union summit. But the ICC rejected this request and demanded that South Africa arrest Bashir, which it did not.
South Africa has complained that the ICC did not give it a fair hearing and that there is confusion within the court itself about the obligations of member states to arrest sitting heads of state of countries which are not members of the ICC – like Bashir.
In October, Justice Minister Michael Masutha announced that the South African government had informed the United Nations of its intention to withdraw from the ICC.
“Written notice to withdraw from the Rome Statute of the International Criminal Court has been submitted to the secretary-general of the United Nations in accordance with article 127(1) of the Rome Statute of the ICC. The withdrawal will take effect one year after the secretary-general has received the notification,” Masutha told a media briefing in Pretoria at the time.
The withdrawal of South Africa from a court which it helped found will come into effect from October 19, 2017.
The South African government was found by the country’s Supreme Court of Appeal to have failed to uphold South African law by not arresting Bashir when he was in South Africa last year.
On Monday, advocate Max du Plessis, representing the SA Litigation Centre, told the court it was unfortunate for South Africa to withdraw from ICC because of Bashir.
“We have withdrawn our support for a court that is currently seeking justice for African victims in the Central African Republic, Uganda, Mali, the DRC (Democratic Republic of Congo) and Cote d’Ivoire.
“Thousands upon thousands of victims of crimes are now no longer with the support of South Africa seeking the justice that only the International Criminal Court can provide. Those victims are all African and their assailants are all – with the exception of Al-Bashir – soldiers and rebels who don’t have immunity,” said Du Plessis.
He said it was untrue that the ICC was only targeting African leaders.
The court case continues on Tuesday. – ANA