The South African government’s regression in its approach to the protection of international human and humanitarian rights with reference to South Africa’s withdrawal from the International Criminal Court, the moratorium on the tribunal of the Southern African Development Community (SADC) and the realistic chance of the establishment of a sustainable permanent African criminal court

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This article uses the South African government’s notice to withdraw from the International Criminal Court (ICC) and its conduct in support of a moratorium on the SADC tribunal to illustrate the regression of its political will to protect individuals against international human and humanitarian rights atrocities.  Besides the preceeding general statement, the article concludes that the most worrying aspect of the South African government’s conduct is that its conduct fails constitutional muster and is therefore unlawful. In respect of South Africa’s obligations in terms of both the Statute of Rome (in the case of the ICC) and its conduct in support of the moratorium that has been placed on the SADC tribunal, it is further a cause for concern that in both instances these obligations have been explained to the government by, in particular, the Constitutional Court. As one scholar has put it, in the case of the ICC debacle the government has stooped to levels lower than any previous South African government, including the apartheid government, This is when the government not only flagrantly ignored a court order, but took active steps to support Al-Bashir’s exit from South African soil. This illustrates the flagrant disrespect for one of the founding values of the South Africa’s constitutional dispensation, namely the rule of law. There can be no doubt that as far as South Africa’s notice of intention to withdraw from the ICC is concerned, it was caused by the Al-Bashir matter. Yet when the United Nations Security Council’s referral of the Sudan matter to the ICC is considered, it appears to have been a rational, well-informed decision by that body in terms of its Chapter VII powers to restore international peace and security. What is perhaps the most astonishing aspect of this referral is the fact that the original resolution to refer the matter to the ICC was supported by South Africa and the African Union. Because the United Nations is a political body and not a court, the support of its original referral of the Sudan matter to the ICC must have logically implied that the ICC would deal with the matter in the manner for which the court had been established. This included the possibility of the indictment of individuals responsible for gross, planned and atrocious human and humanitarian rights violations. The impossibility of raising immunity as a defence on charges before the ICC, including immunity for serving heads and high officials of state, is without any doubt one of the central tenets on which current international criminal law and justice and the ICC itself are premised. The fact that South Africa has recognised this is borne out by the fact that it implemented it in its national legislation. As far as the moratorium which has been placed on the SADC tribunal is concerned, the Law Society of South Africa (LSSA) has challenged the government’s conduct in supporting the moratorium. This article relies substantially on the papers filed in this application. The investigation illustrates the South African government’s failure to recognise that in conducting international affairs on behalf of the country, its conduct must pass South African constitutional muster. The constitutional imperative for the required government’s conduct was clearly spelled out in the Constitutional Court (in context of the SADC tribunal): the right to access to courts is an element of the rule of law. Any limitation on individual access to the tribunal, which the amended SADC protocol has effected, and which was supported by the South African government, again illustrates its disrespect for the rule of law. Against the preceding pessimistic background the final part of this article investigates the realistic chances of establishing a credible and sustainable African court. This line of investigation is followed because reason dictates that the ICC withdrawal and the jurisdictional limitation of the SADC tribunal, imply that the South African government and the African Union must contemplate an alternative justice mechanism better suited to its needs. Logically it follows that if such an investigation reveals any conclusion that a credible and sustainable African court is unlikely in the foreseeable future, it demonstrates that the current South African government and many African states are not serious about gross human rights violations – in particular, that heads and high officials of state should be brought to justice. This part of the investigation starts with a brief illustration of the ideological agenda that underlies the African human rights regime. This regime is still informed by strong anti-colonialist and imperialist sentiments. Understandable as this may be in the light of South Africa’s and the continent’s past, protecting rogue heads and high officials of state attests to a regressive human rights approach. The regression is characterised by an insistence by many African states of their absolute state sovereignty. Such an insistence discounts the fact, as is pointed out in this article, that a UN Security Council referral to the ICC suspends a state’s sovereignty if that country is unable or unwilling to cooperate with the court. The South African government’s conduct in choosing AU instead of UN subservience is unlawful in international law. The South African courts in pronouncing on international treaty obligations provide clear guidance to the South African government and are a ray of hope in the country’s democratic constitutional dispensation.

Keywords: human rights violations; International Criminal Court (ICC); moratorium on SADC tribunal; political will; South Africa; Sudan

Lees die volledige artikel in Afrikaans: Die Suid-Afrikaanse regering se agteruitgang in sy benadering tot die beskerming teen internasionale mense- en humanitêre regsvergrype met verwysing na Suid-Afrika se onttrekking uit die Internasionale Strafhof, die moratorium op die tribunaal van die Suider-Afrikaanse Ontwikkelingsgemeenskap (SAOG) en die realistiese kans op die vestiging van ’n houdbare permanente Afrika-strafhof

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