The first warrant of arrest for President Omar Hassan Ahmad al-Bashir of the Republic of Sudan was issued on March 4, 2009, and the second on July 12, 2010. They were based on seven charges, including five counts of crimes against humanity, two counts of war crimes and three counts of genocide.
Without doubt, the landing of Bashir became a test case in South Africa’s exceptional history of engagement on human rights.
South Africa was one of the first countries to ratify the Roman Statute and was passionate about both the work of the International Criminal Court and the fact that the whole world was tackling heinous crimes against humanity.
The country had diverse views on this issue, and this was of course before and after the landing of President al-Bashir in our country.
Justice and Correctional Services Minister Michael Masutha’s view was that the ultimate authority to decide on international policy for the country is an exclusive executive prerogative in terms of the constitution of the Republic.
Minister Masutha likened what everybody expected South Africa to do when Bashir landed in our country to an example in modern history, where a sitting head of state was indicted and had to stand trial under international or domestic law.
His exact words were: “What we were being asked to do is for South Africa to be a guinea pig using the ICC to effect induced regime change through external means to the normal diplomatic process of another nation.”
Others said that Sudan is not a signatory to the Rome Statute, therefore South Africa was not obliged to arrest its sitting Head of State.
Sudanese President Omar al-Bashir File photo: Ali Ngethi/AP
On the other hand, the country felt that the ICC did not make enough effort to engage the African Union to co-ordinate efforts to end the fighting in that country.
The country’s withdrawal from the ICC is in no way the reneging from our commitment to human rights.
Our history of support for the ICC is evidence of South Africa’s commitment to the principles of multi-nationalism and universal human rights.
During the leadership of the first Minister of the Department of Justice under democracy, the late Dr Dullah Omar, South Africa strongly supported the establishment of the International Criminal Court.
While giving a speech to delegates from 156 countries in Rome, Minister Omar called for an ICC with the authority to make an independent decision of when to take up cases of genocide, crimes against humanity, war crimes and aggression.
He supported giving the prosecutor the powers to begin investigations on his or her own initiative.
South Africa continued to support the establishment of the International Criminal Court and was among leaders of about 50 countries which had the same view on the creation of the ICC, and giving it independent powers.
On July 18, 2002, immediately after the establishment of the ICC and the enforcement of the Roman Statute came into force, the South African Parliament passed the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. This was to create a framework to give effect to the provisions of the Rome Statute in the law of the country.
Another powerful contribution to the country’s mission to preserve human rights through the ICC as an instrument was through well-known human rights activist and winner of the 1984 Nobel Peace Prize for his efforts in resolving and ending apartheid, Archbishop Desmond Tutu.
Due to his continued valuable contribution to the safeguarding of human rights, he was elected to the board of directors of the International Criminal Court’s Trust Fund for Victims in 1994.
He was also named a member of the UN advisory panel on genocide prevention in 2006.
In my portfolio as the South African Ambassador to the Netherlands, I was honoured to serve as the vice-president of the member states at the International Criminal Court at The Hague and the UN.
This task focused on the preservation of the victims’ rights and administration of justice.
It is a known fact that our country is a member of the UN and the African Union.
We ratified many UN human rights conventions and we therefore continue to abide by these international commitments to adhere to the standards laid down in these universal human rights documents.
As the government has clearly stated, the way in which the instrument has been used, and the failure of the most powerful states to adopt it, has resulted in South Africa’s decision to withdraw.
South Africa has been involved in the processes leading to the merger of the African Court of Justice and the African Court of Human and People’s Rights, the review of the mandate of the Pan-African Parliament, and the operationalisation of financial institutions such as the African Development Bank.
This is to help the continent to craft its own home-grown solutions that are informed by a clear-eyed analysis of its own realities and the broader continental aspirations.
South Africa remains committed to upholding human rights.
Our mooted rescinding of participation in the International Criminal Court does not in any way mean that the country will no longer uphold its commitment to treaties aimed at protecting human rights globally.
Our constitution is fortified by an entrenched Bill of Rights, enjoining us to continue to protect and respect human rights.
* Mkhize is Minister of Home Affairs
** The views expressed here are not necessarily those of Independent Media.