Radebe: ‘We have challenges with the ICC’

Minister in the Presidency Jeff Radebe, speaking to the media in Parliament on Thursday following Cabinet’s fortnightly meeting, said withdrawing from the International Criminal Court (ICC) would only be the last resort for South Africa.

He said that there was no decision by the government to allow Sudanese President Omar al-Bashir to leave the country in defiance of a court order and an affidavit detailing his controversial departure will be filed to the high court in Pretoria today.

Radebe said the affidavit would clarify government’s position and answer questions as to how al-Bashir had left the country.

Detailing the meetings held prior to al-Bashir’s arrival in the country as well as the court’s handling of the matter, Radebe said it was clear the ICC had been aware that South Africa may have difficulties in executing the warrant of arrest for al-Bashir due to its international obligations. 

Radebe said consultations had been held with the ICC regarding the execution of the warrant, but a decision was taken by the court that South Africa was under an obligation to arrest and surrender al-Bashir without any notice given to the country. 

“The ICC must have been aware that South Africa would, in the execution of the warrant, breach its existing treaty obligations with the AU [African Union]. That must be the only plausible reason why the ICC had invited South Africa to consult with it. Having extended an invitation to South Africa to consult, the ICC had a duty to consult with good faith with South Africa and to assist it to comply with its obligations to the ICC and the AU. 

“We have challenges with the ICC and those matters will be looked at as we go forward. Government will be appointing a group of ministers that will be interacting with the ICC.”

Al-Bashir was in South Africa for the AU summit and his plane was allowed to depart from the Waterkloof Airforce Base despite a court order that he be kept in the country pending a final decision on whether to arrest him on an ICC warrant. Al-Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity in relation to the conflict in Sudan’s Darfur region.

Review participation with ICC
Radebe said South Africa has, therefore, decided to review its participation in the Rome Statute of the International Criminal Court following the al-Bashir incident.

“The ICC was required to take the matter seriously and both parties were obliged to negotiate in good faith,” said Radebe. He said South Africa may, as a last resort, consider withdrawing from the ICC.

“Such a decision will only be taken when South Africa has exhausted all remedies available to it in terms of the Rome Statute of the International Criminal Court, the Charter of the United Nations and other international law instruments.”

The minister said the country would shortly make arrangements to enter into formal discussions with the ICC on matters of concern, and they would also propose amendments to the Rome Statute to clarify and amplify the consulting and cooperation obligations of the court towards state parties.

“South Africa will [also] enter into immediate discussion with the AU and its member states on how African dispute resolution mechanisms can be implemented without delay to ensure that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation.

“More particularly, South Africa will enter into multilateral and bilateral negotiations with other African countries to expedite the reform of the African Court on Human and Peoples’ Rights and other regional tribunals.”

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