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PGA’s vision is to contribute to the creation of a Rules-Based International Order for a more equitable, safe, sustainable and democratic world.

PGA Conducted A Field Mission To Advocate For Reversing The Withdrawal Of South Africa From The Rome Statute System

PGA Conducted A Field Mission To Advocate For Reversing The Withdrawal Of South Africa From The Rome Statute System

On 10-13 March 2020, PGA conducted a field mission to South Africa to engage in Consultations with Parliamentarians and Government officials on the International Criminal Court (ICC) and the threatened withdrawal by South Africa from the Rome Statute of the ICC.

During the mission, PGA Senior Legal Officer held bilateral meetings with the Deputy Minister of Justice, the Chairman of the Committee on Justice and Correctional Services and several members of the ruling party, African National Congress (ANC), as well as opposition parties. The main objectives of the mission were:

  • To inquire about tendencies regarding the withdrawal of South Africa from the Rome Statute of the ICC.

  • To advocate for the removal of the Rome Statute withdrawal clause from the policy of the governing party, while explaining the importance of the membership of South Africa in the Rome Statute system

  • To expand the PGA membership in South Africa and facilitate a creation of a PGA National Group

The discussions touched upon the topics which have been at the heart of the reasons put forward by South Africa to withdraw from the Rome Statute. As such, the meetings led to interactive exchanges, offering opportunities to address several inaccurate conceptions regarding the ICC. The discussions also confirmed that the consideration of the International Crimes Bill, which has been introduced to set the withdrawal in motion, does not appear to be within the priorities of the Committee on Justice and Correctional Services, despite the recent revival of the Bill by the Parliament. The mission also enabled to determine the best strategies to move forward towards reversing the withdrawal policy prior to the mid-term ANC’s policy review at its National General Council meeting, tentatively scheduled for July 2020, as well as the 55th ANC’s National Conference in December 2022.

The topics discussed included:

  • The purpose of the non-binding “ICC Withdrawal Strategy” adopted by the African Union at its summit in Addis Abeba in January 2017. The Strategy, despite its wording, laid down in the first place several objectives to be pursued to enhance the functioning of the ICC and the African representation therein, while ensuring that international justice is conducted in a fair and transparent manner. The Strategy only refers to initiating a withdrawal in the absence of achieving the set objectives.

  • The current institutional reforms undertaken by the ICC, namely the Independent Expert Review and the election of six new judges and the ICC Prosecutor at the 2020 Assembly of States Parties to the Rome Statute of the ICC.

  • The expanded scope of the ICC in comparison with the protection offered by the domestic level. In particular, even though in the context of international crimes, the domestic International Crimes Bill expands South Africa’s jurisdiction by allowing for territorial and active/passive personality jurisdiction, as well as residential connection of the perpetrator with South Africa, it does not offer protection to its citizens from international crimes committed by perpetrators from other countries against South Africa who are not resident in its territory.

  • The ICC’s recent judicial developments which concern countries outside of the African continent. These include in particular: (i) ICC Appeals Chamber’s unanimous decision to authorize the ICC Prosecutor to commence an investigation into alleged international crimes in relation to the situation in the Islamic Republic of Afghanistan and (ii) the conclusion of the preliminary examination of the Situation in Palestine by the ICC Prosecutor, and a request for a jurisdictional ruling by the Pre-Trial Chamber I on the scope of the ICC’s territorial jurisdiction.

  • The unique position of the ICC as the only existing international mechanism with the mandate to prosecute international crimes and render justice to victims where the countries with primary jurisdiction are unable or unwilling to genuinely to do so. As one of the recent examples, the trust in the ICC has been demonstrated by the domestic developments suggesting that the former President of Sudan, Mr. Omar al-Bashir, subject to two arrest warrants for genocide, crimes against humanity and war crimes issued by the ICC in 2009 and 2010, may be soon surrendered to the ICC for the mass atrocities that he allegedly ordered and executed in Darfur.

As a result of the joint efforts with the PGA Campaign on the Protection of the Ocean, which organised a parallel briefing on Maritime Governance and Sustainable Development on 10 March 2020, several members of the Parliament have joined PGA. The total number of PGA members in South Africa thus satisfies the number for creation of a National Group.

Taking into consideration the developments and measures in place taken to address the current COVID-19 emergency, PGA continues to closely monitor the developments concerning the withdrawal from the Rome Statute in order to strategise the most effective steps forward.

Ms. Frederika Schweighoferova
Senior Legal Officer
International Law and Human Rights Program

Timeline of the most significant events

13-15 June 2015: Mr. Omar Al-Bashir, the President of Sudan at the time, travelled to South Africa for the purpose of attending a summit of the African Union. Despite the ICC’s request for the arrest of Omar Al-Bashir and his surrender to the Court, South Africa did not arrest and surrender him while he was on its territory.

04 September 2015: The ICC Chamber decided that the events warranted the opening of proceedings on South Africa’s failure to arrest and surrender Mr. Omar Al-Bashir and requested the competent authorities of South Africa to submit their views on the events.

December 2015 - May 2016: South Africa submitted three reports concerning the progress of the ongoing domestic judicial proceedings before its national courts on the matter.

19 October 2016: The Government of South Africa submitted its notice of withdrawal from the ICC Rome Statute to the UN Secretary General.

21 October 2016: In reaction to the decision of the Government of South Africa to withdraw from the Rome Statute, PGA Members signed a letter calling on all South African Members of Parliaments to stand against impunity and take actions against the withdrawal.

16 November 2016: At the 15th session of the of the Assembly of States Parties to the Rome Statute of the ICC (ASP), the Minister of Justice and Correctional Services of South Africa reaffirmed the country’s decision to withdraw from the Rome Statute of the ICC.

31 January 2017: Adoption of the ICC Withdrawal Strategy by the African Union.

22 February 2017: PGA South African Members played a leading role in a petition deposited by the official opposition before the High Court of Gauteng (Pretoria) on challenging the illegality of the withdrawal process under the South African legal system. On 22 February 2017, the High Court ruled that the executive order to withdraw unconstitutional, hence null and void. This was based on the absence of the required authorization of this decision by the South African Parliament that had enacted a law authorizing ratification in the year 2000. The High Court ordered President Jacob Zuma to revoke the October 2016 withdrawal notice from the Rome Statute deposited to the United Nations.

07 March 2017: PGA made a formal submission to the South African Parliament detailing the possible negative implications of the Repeal Bill of the 2002 ICC Act, which, if approved, would have made withdrawal constitutionally feasible.

07 March 2017: The Government of South Africa submitted a notification to the Secretary General of the UN, reversing the Instrument of Withdrawal from the Rome Statute.

07 April 2017: A public hearing with representatives of South Africa and of the Office of the ICC Prosecutor took place before the ICC Chamber.

06 July 2017: The ICC issued a judgment finding that South Africa failed to comply with the obligations under the Rome Statute by not executing the Court’s request for the arrest of Omar Al-Bashir and his surrender to the ICC while he was on South African territory between 13 and 15 June 2015. It decided that a referral to the Assembly of States Parties or the Security Council of the matter of South Africa’s non-compliance with the Court’s request is not appropriate.

06 December 2017: During the 16th session of the ASP, the Minister of Justice and Correctional Services reaffirmed the statement read out at the 15th Session of the ASP, in which it announced its intention to withdraw from the Rome Statute. The Minister also announced the introduction of the International Crimes Bill. The purpose of the Bill is to set the withdrawal of South Africa from the ICC into motion by (i) repealing the 2002 Implementation of the Rome Statute of the International Criminal Court Act which had incorporated the Rome Statute into South African law and (ii) providing for an alternative domestic system to try the international crimes.

08 December 2017: The administration of Jacob Zuma tabled the International Crimes Bill.

20 December 2017: ANC adopted a decision to withdraw from the Rome Statute of the ICC at its 54th National Conference.

15 February 2018 & 22 May 2019: Following the resignation of the president Jacob Zuma, an indirect presidential election was held in the National Assembly in South Africa. Acting president Cyril Ramaphosa of the ruling African National Congress won the election unopposed due to no other party nominating a candidate. He was re-elected in the presidential election on 22 May 2018.

05 December 2018: In the statement at the 17th session of the ASP, the South African Ambassador to the Netherlands welcomed the great importance the ASP attaches to intensifying the dialogue with the African Union and commended the continued engagement between the ICC and the African Union “to counter perceptions of bias that the Court is unfairly targeting Africa.”

08 May 2019: General elections were held in South Africa to elect a new National Assembly and provincial legislatures in each province, with the ANC party winning a majority.

06 November 2019: After the revival of the International Crimes Bill by the South African Justice Minister Ronald Lamola, the Bill was submitted to the consideration of the Committee on Justice and Correctional Services.

02 December 2019: In the statement at the 18th session of the ASP, the Deputy Minister of Justice and Constitutional Development of South Africa, expressed its support for “an independent and objective instrument to bring to an end the heinous crimes against humanity”. He suggested the ICC should address perceptions of the politicisation of the ICC by the UN Security Council referrals and welcomed the initiatives to improve the ICC’s performance. Nevertheless, he referred to the continuing “deliberations on the issue of withdrawal from the Rome Statute as the matter is still to be considered by the Parliament”.