South Africa's International Crimes Bill - an instrument of impunity?

South Africa's proposed withdrawal from the Rome Statute has been on the cards for some time now. It was sparked by the clash of legal opinion between the South African government and the ICC concerning South Africa's failure to arrest and surrender ICC suspect, President Al Bashir, when he visited South Africa for the AU Summit in 2015. Though an earlier effort on the part of the South African government to withdraw was thwarted on procedural grounds in the High Court - ruling that the decision to withdraw can only be made with prior parliamentary approval - the South African government seems resolved to push ahead with its withdrawal. This despite the relatively lenient approach of the ICC Pre-Trail Chamber in response to its finding that South Africa had failed to comply with its obligations of cooperation under the Rome Statute.

In his opening statement before the 16th Assembly of States Parties to the Rome Statute, South Africa's Minister of Justice and Correctional Services, Adv. Tshililo Michael Masutha, highlighted South Africa's motivation for its withdrawal, referring directly to the ICC Pre-Trial Chamber's decision:

“Needless to say that the Pre-Trial Chamber ruling raised new issues and further clouded, rather than provided clarity on, South Africa's concerns regarding its obligations vis-a-vis the Court, specifically in respect of the relationship between Articles 27 and 98 of the Rome Statute. South Africa is therefore still left in an invidious position of needing to abide competing obligations as a State Party to the Rome Statute and having to fulfil its role as a mediator for peace especially in conflict situations on the African continent. Whilst the Pre-Trial Chamber of the ICC insists that States Parties have an obligation to arrest President Al Bashir implicit in United Nations Security Council Resolution 1593, the Court has not, to our knowledge, offered consistent or convincing reasons in arriving at such a conclusion in the face of legal provisions that appear to suggest the opposite in our estimation.”

The new International Crimes Bill has now been tabled before the South African Parliament. Its objectives and provisions (e.g. those concerning substantive crimes and jurisdiction) are largely similar to those of the current Implementation of the Rome Statute of the International Criminal Court Act 27 of 2003. The bill's purpose is to fill the void that will be left if South Africa's withdrawal becomes effective. Although South Africa would then no longer be bound by the Rome Statute, the new bill provides for the surrender of those suspected of the commission of international crimes to "entities", which includes:

"[...] the International Criminal Court, any international organisation, international tribunal, international court, or similar international body which has jurisdiction in respect of an international crime."

This echoes minister Masutha's remarks in his opening statement to the effect that South Africa remains committed to the principles contained in the Rome Statute.

However, the most significant (and controversial) aspect of the new bill is its provision on immunity. Section 3 of the Bill provides:

"This Act does not apply to persons who are immune from the criminal jurisdiction of the courts of the Republic in accordance with customary international law or as provided for in the Diplomatic Immunities and Privileges Act, 2001."

In light of the above, it would seem that the International Crimes Bill confirms that South Africa views its role as peacemaker in Africa as more important that its role in the struggle against impunity and also that these roles are mutually exclusive - a view that seems to be partly informed by its own history and transition to democracy. Some may view South Africa's decision to withdraw as a nobly-intentioned trade-off or compromise by a country facing a tricky political conundrum in a regional setting where it is viewed by itself and other states as a leading nation. But let us remember that things didn't have to be this way. It was not that long ago that South Africa warned President Al Bashir not to attend a presidential inauguration in South Africa to which he had been invited because he might have to be arrested when he arrives. Is South Africa making a principled decision, one that other states may emulate? Or is the decision a shortsighted one based on the situational politics surrounding President Al Bashir?

Of course, any outside scrutiny of South Africa's decision will also have to consider the victims of the Darfur conflict and the enduring lack of accountability for international crimes. There can be no mistake that South Africa has now set itself apart from other states, similarly interested in both peace and justice, that continue to support to ICC instead of pursuing a unilateral course of action (South Africa is not the first and probably not the last state to be found in violation of its obligations of cooperation). The continued support for the ICC, including support from African states, is likely informed by the general view among states that more can be achieved for peace and justice through collective efforts than through state exceptionalism. Unlike non-member states like the US, China, and Russia, South Africa is not a global superpower. Its lack of full support for the ICC may mean that South Africa will find it increasingly hard to preserve its reputation as a champion of human rights, especially if many states continue to call for the universal ratification of the Rome Statute.

There is still hope for those who want to see a change of course by the South African government. South Africa's ruling party, the African National Congress (ANC), will reportedly be discussing the withdrawal issue when it meets for its policy conference later this month. However, as decided by the South African High Court, South Africa's parliament must ultimately approve the withdrawal from the ICC.