Human Rights Commission concerned by South Africa’s withdrawal from International Criminal Court

22 Oct 2016

South African Human Rights Commission expresses concern at South Africa’s withdrawal from the International Criminal Court

The South African Human Rights Commission (the Commission) notes with concern the South African government’s decision to withdraw from the Rome Statute of the International Criminal Court (ICC).  The withdrawal notice has been submitted on the 19th October 2016, to the Secretary-General of the United Nations in accordance with Article 127(1) of the Rome Statute of the International Criminal Court.

The Commission is a state institution established in terms of Chapter 9 of the Constitution of South Africa to support constitutional democracy and is mandated in terms of section 184 (1) (a-c) of the Constitution to “promote respect, monitor, and assess the observance of human rights in South Africa”.

ICC only permanent international criminal court

The ICC is the only permanent international criminal court and is a crucial instrument of international criminal justice, particularly with respect to ending impunity for perpetrators of international crimes. 

South Africa signed and ratified the Rome Statute in 1998 and thereby joined with other state parties in affirming its commitment to the rule of law and to ending impunity for perpetrators of international crimes. 

Ratifying the Rome Statute was a tacit recognition that human rights extend beyond geopolitical boundaries and interests, and that a collective commitment is required to uphold these rights.

Commitment to Human Rights and the Rule of Law

This commitment to the Rome Statute was a reaffirmation of South Africa’s constitutional commitment to human rights and the rule of law.

South Africa’s constitutional commitment to human rights and the rule of law echoes the commitment made by the ruling party before the dawn of our democracy. 

In this regard, in 1993, the late former president of South Africa, Nelson Mandela, when he was outlining the future international relations policy of the country, stated the following:
“South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations … The time has come for South Africa to take up its rightful and responsible place in the community of nations.  Though the delays in this process, forced upon us by apartheid, make it all the more difficult for us, we believe that we have the resources and the commitment that will allow us to begin to make our own positive contribution to peace, prosperity and goodwill in the world in the very near future.”

In light of the above therefore, it is apparent that the constitutional values were not only intended to inform the government’s interactions with its citizens but were also intended to inform the government’s interactions with other nations.

Instrument to hold African perpetrators accountable

In the Commission’s view, in the absence of a viable alternative mechanism for holding African perpetrators of human rights violations and international crimes accountable for their actions, an exit from the ICC will not bode well for the rule of law, a principle to which South Africa has committed.

Whilst the Commission recognises that the establishment of the African Court of Human and People’s Rights was an attempt to ensure greater accountability, in the Commission’s view, this did not go far enough. 

In this regard, the jurisdiction of the African Court of Human and People’s Rights does not extend to criminal prosecutions and the Court’s competence to receive complaints from non-state parties and non-African Intergovernmental Organisations is limited. 

Immunity to sitting heads of state

Whilst the 2014 Protocol (on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights – ‘Protocol’) confers criminal jurisdiction to the Court, the Protocol also grants immunity to sitting heads of states and other senior state officials. 

The effect of this immunity is that those guilty of the grossest violations of human rights and the perpetration of international crimes will not be held accountable for their actions, for as long as they remain in power. 

Combined with the tendency of some heads of states to want to remain in power for life, the extension of such immunity will undoubtedly result in some heads of states not being held accountable for their actions. 

Moreover, the granting of immunity to sitting heads of states is likely to encourage an increase in the number of heads of states in Africa who want to overstay in office (even for life), while unleashing a litany of human rights violations against their citizens.  This is of course undesirable and goes against the values upon which South Africa is founded.

In a letter to Honourable Minister M E Nkoana-Mashabane, Department of International Relations and Cooperation, dated 15th July 2016, the Commission availed itself to assist the South African government in any way possible, in order to ensure that its international relations policy reflects the highest ideals of our Constitution.

Unfortunately, a meeting with the Minister did not transpire and it is the Commission’s regret that an opportunity was lost to re-iterate South Africa’s commitment to rule of law and human rights in our international relations framework.

ICC crucial instrument to for access to international justice

The ICC remains essential in ensuring the rule of law and the upholding of human rights globally for victims of human rights violations. 

The ICC represents an important mechanism for victims of human rights violations to access justice and to end impunity in the particular situation where their family and loved ones have been killed and maimed. 

In the absence of regional courts with criminal jurisdiction, the ICC provides justice internationally for those affected by egregious human rights violations, crimes against humanity, and for victims of genocide.

Enquries:
Gail Smith - Spokesperson: SAHRC
Tel: +27 11 877 3803
E-mail: gsmith@sahrc.org.za

For media queries, please contact:
Gushwell Brooks, Communications Co-ordinator, SAHRC
Tel: 082 645 8573
E-mail: gbrooks@sahrc.org.za