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ANC believes court's decision vindicates SA's withdrawal from the ICC

President Jacob Zuma and Sudanese President Omar al-Bashir File photo: Jacoline Prinsloo

President Jacob Zuma and Sudanese President Omar al-Bashir File photo: Jacoline Prinsloo

Published Jul 10, 2017

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Late last week the pre-trial chamber of the International Criminal Court (ICC) ruled that South Africa violated its legal obligations to the court in failing to arrest Sudan's President Omar al-Bashir when he was attending a summit of the AU in South Africa in 2015.

The court found that it would not be appropriate to refer the matter to either the Assembly of State Parties to the Rome Statute, or to the UN Security Council (UNSC), because this was not considered an effective way to obtain co-operation with the ICC.

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The decision, although regrettable, was widely expected.

Although we note the pre-trial court's decision, the ANC believes the court's decision once again vindicates our position that we should withdraw from the ICC - where we were between a rock and a hard place: forced to choose between carrying out our obligations in terms of the Rome Statute - and taking a decision with far-reaching and potentially disastrous foreign policy implications.

In this case, executing the arrest warrant would have scuppered any chances for peace in Sudan.

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The ANC's decision is in line with various party resolutions and was reaffirmed during the recent national policy conference.

The ANC believes the ICC has vastly strayed from the original purpose for which it was

established.

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In 1998, the South African government ratified the Rome Statute in good faith; optimistic the court would act impartially and in the best interests of all nations.

Unfortunately, this has not proven to be the case, as the ICC selectively pursues justice with external actors and powerful interests (including the permanent members of the UNSC) imposing sanctions over signatory countries in line with a statute they themselves are not subject to.

These instances of political interference can no longer be ignored.

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The ANC is committed to be part of the solution in Sudan: a solution where the needs, hopes and aspirations of the people of Sudan come first.

South Africa is involved in peacekeeping missions in several countries, including Sudan, and is also “actively involved in ensuring that the fragile peace process under way in Sudan and South Sudan holds - in the interests of the peoples of those sovereign states.”

Far from being praised for our efforts to promote peace and stability in the region, South Africa would have been regarded as having been a “player” in the conflict with consequences for our peacekeepers and the country as a whole.

This month the US administration is expected to announce whether it will lift a 20-year economic embargo on Sudan, as the six-month review period expires.

In January, the outgoing Obama administration had issued an executive order “to permanently repeal a range of sanctions” against Khartoum, citing the government's efforts to improve regional security.

Coupled with this, last week President al-Bashir extended the four-month-long ceasefire currently in place in Darfur, Blue Nile and South Kordofan “as part of the government's initiative to bring peace to Sudan”.

Any improvement in bilateral relations between the US and Sudan, as well as with the other countries of the continent, would not be foreseeable without the Sudanese government.

President Zuma has met with warring factions in the region on a number of occasions, where they expressed to him that there could be no solution to the conflict in Sudan without involving the National Congress Party and President al-Bashir.

The ANC knows that it is the people of Sudan who stand to lose the most if the region once again descends into warfare.

In their eagerness to score points against their own government, the local NGOs fail to realise that all the fledgling efforts towards peace we are currently witnessing in Sudan would have been destroyed and the decades-long conflict resumed.

The ANC reiterates its support for the role of international law in stamping out atrocities. We further remain committed to multilateralism.

Now, more than ever, the world needs a collective mechanism to protect the vulnerable, and to ensure that those accused of war crimes are brought to justice.

It is unfortunate that some have come to regard the selective justice of the ICC as the Holy Grail of international justice - when other forms of pursuing redress and justice also exist.

The community-based Gacaca courts established in Rwanda after the 1994 genocide are one example.

The Special Court for Sierra Leone, set up in 2002 to try those accused of war crimes, is another example.

The most notable example is South Africa itself.

Upon attaining democracy, we could have chosen the Nuremberg Trial route, but instead opted for a Truth and Reconciliation Commission.

With regards to Sudan itself, there were calls made around 2009 for the AU to assist with the establishment of a local tribunal to be established to deal with abuses committed in the Darfur region.

The ANC's international relations policy priorities are informed by among other things, our endorsement of Agenda 2063 of the AU: of “an integrated, prosperous and peaceful Africa driven by its own citizens”

It is for this reason that the ANC has repeatedly said that we will continue to urge the government to enter into multilateral and bilateral negotiations with African countries to expedite the reform of the African Court on Human and People's Rights, as well as other regional tribunals “to ensure that serious crimes against humanity can be promptly and efficiently tried by these bodies”.

Molewa is chairperson of the ANC International Subcommittee

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