Court action to stop South Africa leaving International Criminal Court

The Democratic Alliance (DA) will on Friday approach the courts to have the notice of South Africa’s intention to withdraw from the International Criminal Court (ICC) “set aside on the grounds that it is unconstitutional‚ irrational and procedurally flawed”.

News of the withdrawal came after an “Instrument of Withdrawal” emerged that was sent by International Relations and Cooperation Minister Maite Nkoana-Mashabane notifying the United Nations (UN) of the country’s intention to pull out of the ICC.

“The decision by Nkoana-Mashabane to act unilaterally on this matter is a disgrace and shows the depth of impunity and disregard for the rule of law within the African National Congress‚” said the DA’s James Selfe.

“Section 231 of the Constitution is clear that binding international agreements become law in the Republic upon ratification by the National Assembly (NA) and the National Council of Provinces (NCOP). It is thus unconstitutional for the minister to unilaterally exit South Africa from the agreement‚ without Parliament having repealed the agreement first.”

HOLE IN THE HEAD

‘Clearly the minister was acting with a hole in her head when she decided to submit this withdrawal notice to the United Nations – it is unconstitutional‚ irrational and counter the prescripts of administrative justice’

Selfe described as “outrageous that the minister would seek to anticipate a decision of Parliament with regards to the Implementation of the Rome Statute of the International Criminal Court Act‚ 27 of 2002”.

“While slightly separate from the ratification Act‚ the Implementation Act would similarly need to be repealed as part of South Africa’s exit from the ICC. Parliament has not passed such an Act and such action by the legislature cannot be presupposed by the Executive‚” he added.

“Clearly the minister was acting with a hole in her head when she decided to submit this withdrawal notice to the United Nations – it is unconstitutional‚ irrational and counter the prescripts of administrative justice‚ and as such must be set aside by the courts.”

The “hole in her head” is a reference to a rambling interview Nkoana-Mashabane conducted with Al Jazeera earlier this year.

Justice Minister Michael Masutha had earlier on Friday said the implementation of the Rome Statute of the International Criminal Court Act hinders South Africa’s international relations with foreign countries‚ particularly with those in which serious conflicts occur.

“This act and the Rome Statute of the ICC compel South Africa to arrest to arrest persons who may enjoy diplomatic immunity under customary international law‚ but who are wanted by the ICC for genocide‚ crimes against humanity and war crimes and to surrender such persons to the ICC‚” he said.

STOP THAT TRAIN

‘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’

Masutha said South Africa is compelled to do this even in those countries where the government is “actively involved” in promoting peace‚ stability and dialogue.

“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 said.

He said his department will soon table a bill proposing the repeal of the Implementation of the Rome Statute of the International Criminal Court in Parliament.

“The effect of withdrawal from the Rome Statute as well as the repeal of the Implementation Act thus completes the removal of all legal impediments inhibiting South Africa’s ability to honour its obligations relating to the granting of diplomatic immunity under international law as provided for under our domestic legislation.”

Human Rights Watch (HRW) slammed the decision‚ and said: “questions remain about whether the government even acted in line with its own laws for leaving the court”.

HRW’s Dewa Mavhinga also criticised the move‚ saying: “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.

“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.”

In Nkoana-Mashabane’s missive‚ she said the withdrawal would take effect “one year after the receipt of the notification”.

Business Day

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