Omar al Bashir. Picture: THE TIMES

Omar al Bashir. Picture: THE TIMES

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Editorial: Retreating from the moral high ground

A definitive break with Nelson Mandela's legacy
Louis Brandeis

DANGEROUS TIMES

Growing evidence of government disrespect for the law and the rights of its own people

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FM Edition:

When SA made its shock announcement last Friday that it would be withdrawing from the International Criminal Court (ICC), the outcry was predictable.

By Monday, two organisations — the DA and the Council for the Advancement of the SA Constitution (Casac) — had applied urgently to the highest court, the constitutional court, to set aside the withdrawal notice. More can be expected to join the fray.

SA was instrumental in the creation of the ICC and was the first African country to make it part of its domestic law. The idea of the Rome Statute — the law that establishes the ICC — is to end impunity and to ensure that people committing genocide and those accused of crimes against humanity and war crimes do not escape justice.

However, SA dramatically collided with this lofty ideal last year when Sudanese president Omar al-Bashir — wanted by the ICC for genocide, crimes against humanity and war crimes — came to this country for an African Union summit. A court case was urgently brought to compel government to arrest him in accordance with its duty under the domestic legislation that made the Rome Statute part of SA law.

Despite a court order that he should not be allowed to leave, he did just that, taking off from an SA Air Force base — leading to a public outcry and creating a stand-off between the judiciary and the executive.

In court papers this week, the DA’s James Selfe called the withdrawal from the ICC a "betrayal" by SA of the human rights ideals that characterised the early years of democracy.

Casac’s Lawson Naidoo quoted Lawyers for Human Rights, saying that the move was a "slap in the face for the victims of the most serious crimes".

But the ICC has over the years come in for increasing criticism — sometimes called a form of "judicial imperialism" — because every one of its cases has been related to African countries. This year, for the first time, an ICC investigation has been initiated in Georgia.

In his affidavit Naidoo seeks to dispel this argument. He says the accusation that the ICC is biased against Africa is false, as most of the cases were "self-referrals" — cases brought to the court by the concerned state itself. Some academics, however, have questioned whether some of the self-referrals were really self-referrals; or whether the African countries were pressured or lobbied to make the referrals.

Respected Ugandan academic Mahmood Mamdani has been vocal in his criticism, saying the ICC model is not best-placed to bring peace.

Writing in The New York Times with former president Thabo Mbeki in 2014, Mamdani said: "In civil wars, no-one is wholly innocent and no-one wholly guilty. And extreme violence is seldom a stand-alone act. More often than not, it is part of a cycle of violence. To call simply for victims’ justice, as the ICC does, is to risk a continuation of civil war."

However, the dominant view among human rights and international law experts is that, while the ICC may be criticised on a number of grounds, its demise would be a step backwards.

For SA — which sets an example for the rest of the continent — to withdraw "places the future of the ICC at great risk," says Selfe.

The DA and Casac are arguing that government did not have the power under the constitution to unilaterally withdraw from the Rome Statute.

When it came to entering the ICC, parliament’s approval was required — by ratifying the Rome Statute and making it part of SA law. This gives effect to the separation of powers and creats a "carefully balanced system of checks and balances".

A proper interpretation of the constitution requires the same involvement of parliament when it comes to exiting international agreements, they say.

Government has yet to respond to the court papers. But justice minister Michael Masutha has defended the decision, reportedly saying it was aimed at creating peace and stability on the continent.