Next year Parliament will be asked to radically alter the relationship between South Africa and the International Criminal Court (ICC) — and so explicitly protect serving heads of state from prosecution for genocide and war crimes.
Under a new draft law, the International Crimes Bill, those who can claim diplomatic immunity, such as high-ranking officials of foreign governments, will also be excluded from prosecution under South Africa’s anti-torture law.
As the law currently stands there is no immunity in South Africa for those who commit “unimaginable atrocities” such as systematic rape or murder, specifically because immunity was previously held to encourage a sense of impunity.
But, the government now says, a lack of immunity specifically for heads of state hinders international relations and imperils peaceful conflict resolution.
However, the new approach to international crimes, specifically the immunity aspect, is likely to face some stiff opposition when it comes before Parliament.
“We will certainly make submissions to Parliament when the time comes,” said Kaajal Ramjathan-Keogh, head of the Southern Africa Litigation Centre (SALC), this week.
In mid-2015, Sudanese leader and suspected genocidaire and war criminal Omar al-Bashir escaped South Africa despite what local courts and the ICC have confirmed was an iron-clad obligation to detain him and deliver him to justice.
The ANC then resolved that membership of the ICC is incompatible with obligations to the African Union and peacemaking on the continent. And in October last year, International Relations Minister Maite Nkoana-Mashabane signed a letter that supposedly withdrew South Africa from the ICC and the Rome Statute that governs the court. South Africa had been an enthusiastic founding member of the court.
In February, however, the high court ruled that attempt had been unlawful because Parliament had not been asked for its approval.
“There is nothing patently unconstitutional … about the national executive’s policy decision to withdraw from the Rome Statute, because it is within its power and competence to make such a decision,” the court said. “What is unconstitutional and invalid is the implementation of that decision.”
This week the justice department, after an initial false start, published the draft International Crimes Bill, which contains a second attempt to withdraw from the ICC.
The department plans to submit the draft to Parliament in the new year. But the draft law does not simply pull South Africa out of the ICC. It contained a number of surprises. A few of those even came as good news to the SALC.
“What is encouraging is that it criminalises the three major international crimes: genocide, crimes against humanity and war crimes,” said Ramjathan-Keogh, who had been closely involved in attempts to have al-Bashir arrested as well as the challenge to the initial attempt to withdraw from the ICC.
The Bill lifts its definitions of those types of crimes verbatim from the Rome Statute.
The SALC also considers it positive (even if it was legally inescapable) that the Bill would apply only once it is signed into law. The effect is that al-Bashir will still be liable for arrest if he should return to South Africa; only future war criminals, who are heads of state, will be free from that threat.
The Bill is also at great pains to maintain a relationship between South Africa and the ICC, or similar future organisations such as an African court that has been mooted by the African Union. Under the draft, such multilateral courts are first in the queue if a war crimes suspect is also wanted for extradition by nation states with which South Africa has extradition deals.
Entities such as the ICC can also request help from South Africa, including local search and seizure and providing witness protection, on top of asking for the delivery of suspects in or passing through South Africa.
But where the ICC could, and previously has, demanded action by the South African government, the power relationship the Bill envisages is very different. When asked for assistance from the likes of the ICC, the Bill says the government may refuse on grounds including that complying “would affect the Republic’s sovereignty, security, public order or public interest” .
For alleged international crimes committed in South Africa, prosecutors are obliged to include “national and regional interest considerations” when deciding whether to pursue cases.
Meanwhile, if a request to surrender a suspect is refused the government must give reasons for the refusal, but after that an entity such as the ICC must raise “new and material information” to make a new extradition request.
There is no limitation in the Bill on the reasons that can be used to justify a refusal to extradite.
Heads of state and others with diplomatic immunity are not only specifically excluded from extradition, the International Crimes Bill also gives them a pass on torture.
The 2013 Prevention of Combating and Torture of Persons Act currently says that being a head of state “is neither a defence to a charge of committing” torture “nor a ground for a possible reduction in sentence” for torturers.
Under the new Bill, that is to be replaced with a statement that the torture law does not apply to those with immunity under customary international law.