South Africa To Withdraw from the International Criminal Court

Caroline Theuri October 24, 2016

South Africa has announced its intention to leave the International Criminal Court (ICC),  Reuters reports. According to the country’s Minister of Justice and Correctional Services, Michael Masutha, the ICC law regarding diplomatic immunity “differs with that of South Africa.” This makes South Africa the second country to withdraw from the ICC, with the announcement coming just days after Burundi revealed its plans to leave the Hague-based court earlier this month.

According to the United Nation Human Rights Commission for Refugees, the country has issues with the ICC due to its handling of the investigation into the 2015-2016 post-election violence, which left over 400 people dead and displaced more than 300,000 others.

In June, South Africa threatened to leave the ICC after the court attempted to arrest Sudan’s President, Omar al-Bashir, a year after the country had hosted him at the 25th African Union Summit in Johannesburg.

As an ICC member state, South Africa defied the court by failing to arrest al-Bashir, who has two pending arrest warrants from the war crimes court, according to the Guardian. This, despite the South African High Court securing an order for his arrest prior to the government’s facilitation of his return to Sudan. The government pointed to the 2011 Diplomatic Immunities and Privileges Act, which grants a head of state immunity from arrest, as the reason why it allowed al-Bashir to go free.

The Sudanese head of state has been charged as an indirect co-perpetrator on ten counts of crimes; including five counts of crimes against humanity, two counts of war crimes, and three counts of genocide allegedly committed between 2003 and 2008.

The ICC was established in 1998 under the Rome Statute treaty. Article 27 of the treaty states that all people brought before ICC are equal before the law regardless of their status. Therefore, al-Bashir does not enjoy immunity from arrest despite being Sudan’s head of state.

In 2011, Kenya amended this law by passing a landmark ruling that stipulates that Al Bashir should be arrested as soon as he steps foot in the country. Since the law was enacted, the Sudanese president has not attempted to enter Kenya, which is an ICC member state. Kenya’s ruling was a precedent for all 124 ICC member states.

According to Reuters, other ICC member states, including Djibouti and Uganda, have also welcomed al-Bashir to their countries without arresting him.

Withdrawal Process

While the ICC has yet to receive an official notification of South Africa’s  decision to leave the court, UN Spokesman, Stephane Dujarric, confirmed receipt of an “instrument of withdrawal document.” He told Reuters that the UN has ascertained the authenticity of the document and is currently processing it. The withdrawal process will take place within the one-year stipulated time, effective October 19th 2016.

Besides establishing the ICC as an independent court dealing with crimes against humanity, the Rome Statute treaty acknowledges the importance of the UN in global security. That’s why the first step in the process of withdrawing from the ICC is to send a letter to the UN for approval.

In the past, the Human Rights Watch has cautioned ICC member states from withdrawing from the court, arguing that doing so encourages “impunity and denies victims of crimes against humanity their rightful justice.”

Last Edited by:Charles Gichane Updated: September 15, 2018


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