Bill will not absolve SA from ICC obligations

SA is about to withdraw from the Rome Statute, abandon the international criminal justice project, amend its ICC Act, Geneva Conventions Act, Torture Act and six other domestic Acts, for an individual whom they will have to arrest despite withdrawing should he be found on SA soil. So says Navi Pillay, former UN High Commissioner for Human Rights and member of the Africa Group for Justice and Accountability; and Angela Mudukuti, the International Criminal Justice lawyer at the Wayamo Foundation. They argue that the introduction of the International Crimes Bill signals a ‘steadfast resolve’ to eventually withdraw from the Rome Statute. The Bill was apparently drafted because of accusations that the ICC was targeting Africa in its prosecutions, and because of SA's alleged support for Sudanese President Omar al-Bashir, the only head of state who is wanted by the ICC. Al-Bashir stands accused of two counts of war crimes, five counts of crimes against humanity and three counts of genocide against black Sudanese people. However, in an analysis on the Daily Maverick site, the authors note that the withdrawal from the Rome Statute does not absolve SA from its legal obligation to arrest and surrender al-Bashir. This is because article 127 (2) of the statute states that a state ‘shall not be discharged from the obligations arising from this statute while it was a party to the statute’. SA’s withdrawal will not affect its obligations to co-operate with the ICC with regard to ‘proceedings in relation to which the withdrawing state had a duty to co-operate and which were commenced prior to the date on which the withdrawal became effective.’ As long as al-Bashir remains wanted by the ICC, SA – like every other state party – will remain legally bound to arrest him. ‘For all intents and purposes, there is a SA warrant for al-Bashir’s arrest.’ The authors argue that as SA played a ‘crucial role’ as the leader of the ‘like-minded’ group that fought for the creation of a strong and independent ICC, ‘constructive and sustained engagement is the way forward, not withdrawal’.