South Africa's Minister of International Relations and Co-operation Maite Nkoana-Mashabane File picture: Phill Magakoe

Johannesburg - Civil society has been urged to bring a legal challenge to the South African government’s decision this week to withdraw from the International Criminal Court (ICC).

Africa had shown “a startling disregard for justice,” by its decision, the international advocacy group, Human Rights Watch, said on Thursday.

On Wednesday Pretoria informed UN Secretary-General Ban Ki-moon that it was withdrawing from the controversial Hague-based court which tries the gravest crimes: genocide, war crimes and crimes against humanity.

The withdrawal of South Africa from a court which it helped found, will come into effect a year from Wednesday (October 19, 2017).

In a letter delivered to Ban, Minister of International Relations and Cooperation Maite Nkoana-Mashabane said that South Africa’s membership of the ICC was interfering with its peace mediation efforts in Africa.

This was an apparent reference to the ICC indictment of Sudanese President Omar al Bashir for alleged atrocities in Darfur.

The South African government has been found by South Africa’s own Supreme Court of Appeal to have failed to uphold South African law by not arresting him when he visited South Africa in June last year.

Also read: SA to quit ICC: What it means

Justice Minister Michael Masutha on Friday confirmed that South Africa was pulling out of the International Criminal Court because its obligations are inconsistent with laws giving sitting leaders diplomatic immunity.

"The Implementation of the Rome Statute of the International Criminal Court Act, 2002, is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act, 2001," Masutha told a media conference in the capital Pretoria.

However, on Thursday Anton du Plessis, managing director of the Institute for Security Studies (ISS) in Pretoria, said he believed that the South African government had acted illegally in withdrawing from the ICC Treaty this week.

This could only be done with parliamentary approval, he said, and not by the executive acting on its own.

The decision to withdraw had been taken by the Cabinet on Wednesday, an official has said.

Du Plessis said civil society should launch a legal challenge to the decision to withdraw and this should happen immediately.

Du Plessis also questioned why Pretoria had decided to pull out of the ICC only a few weeks before it was due to attend the meeting of the Assembly of States Parties of the Rome Statute which governs the ICC.

He recalled that the government had said before that it wished to seek amendments to parts of the Rome Statute in the Assembly and would only withdraw from it if it failed to do so.

“So why has it decided now to pre-empt the outcome of the Assembly deliberations?” he asked.

Du Plessis said he believed the reason was to try to politically neutralise the effect of the decision which the Constitutional Court is scheduled to start hearing the case on November 22 on whether or not it agreed with the Appeal Court decision on Al-Bashir.

Du Plessis said he believed the Zuma administration was looking for political cover in case the Constitutional Court upheld the Appeal Court decision that Pretoria had acted unlawfully in failing to arrest Al-Bashir.

He said he believed that if that happened, the government wanted to be able to say “well it doesn’t matter anyway as we have already decided to pull out of the ICC.”

Du Plessis said the government shouldn’t be allowed to get away with such “smoke and mirrors” political manouevering as the courts’ decisions on the Al-Bashir case still stood regardless of whether or not South Africa pulled out of the ICC next year.

He noted that South Africa had incorporated the ICC Rome Statute into South African domestic law so it had breached its own law, not just an international treaty, by failing to arrest Al-Bashir.

Human Rights Watch said: “South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes.

“Questions remain about whether the government even acted in line with its own laws for leaving the court. It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored.”

African News Agency and Reuters