The Hague/New York, March 9, 2017
PGA submits International Law arguments before the South African Parliament’s Justice Committee on the proposal of the Government to repeal the ICC Implementation Act of 2002
Parliamentarians for Global Action (PGA) welcomes the decision of the Government of South Africa to halt the process of exit from the ICC through a notification of 7 March to the Secretary General of the UN, the depository of the treaty. Two weeks ago, the High Court of Gauteng (Pretoria) found that the Executive’s decision to withdraw from the Rome Statute was unconstitutional, hence null and void as it was not duly authorized by the South African Parliament which had adopted the law authorizing ratification in the year 2000.
It is only now, with the recent Executive action, that South Africa can effectively remain in the ICC system against impunity for mass atrocities. However, the Government of South Africa is still supporting a parliamentary process to repeal ICC-related legislation, which may re-open the doors for an exit from the Rome Statute system, and may soon propose to Parliament a legislative Bill on withdrawal.
This interim decision by South Africa follows the permanent one taken by The Gambia, whose new President, Adama Barrow, revoked his predecessor’s notification of withdrawal from the ICC in February 2017. Of the three African States that sent letters to the UN to withdraw from the ICC in the last trimester of 2016, only Burundi has not retracted in some form from this dramatic step, which can enter into force only one year after its notification to the UN.
Now, the South African Parliament is called to deliberate on a proposal from its Government to repeal the 2002 domestic legislation incorporating the norms and principles of the Rome Statute into South African law. In this respect, yesterday PGA submitted a filing before the Justice Committee of the South African Legislature which highlights the customary international law nature of the main legal principles contained in the Rome Statute. No State can withdraw from customary international law. Among such principles, the center-stage is occupied by the irrelevance of official capacity, or principle of no-immunities, on the basis of which every International Tribunal that has been created since 1945 was mandated to bring to justice individuals who are capable of directing armed forces to commit widespread or systematic attacks against any civilian population. These individuals include Heads of States, whose impunity is one of the causes contributing to repetition of mass atrocities and reoccurrence of internal conflicts and aggressive wars.
The ICC jurisdiction, under Article 5 of the Rome Statute, enlists genocide, crimes against humanity, war crimes and the crime of aggression. These are the crimes under International Law stemming from the Nuremberg precedent of 1946. Upon proposal by South Africa under the Mandela Administration, on 17 July 1998 the crime of apartheid was incorporated as a punishable offense under crimes against humanity. Previous definitions of crimes against humanity in the Statutes of the Nuremberg, Tokyo, former Yugoslavia and Rwanda Tribunals did not criminalize apartheid as such.
If Parliament would decide to repeal the South African ICC Act (2002) and authorize the Government to start again the process of withdrawal from the Rome Statute, it would negate the legacy of President Nelson Mandela and his Minister of Justice, the late Dullah Omar, who led the South African delegation to the Rome Diplomatic Conference of 1998, which agreed unanimously with South Africa’s proposal to label apartheid as a crime against humanity from which no one can hide behind the shield of immunities or other procedural bars to prosecutions.
PGA calls upon all Members of the South African Parliament, starting with its Justice and Constitutional Affairs Committee, to reject the proposal to repeal the historic ICC Implementation Act of 2002, which inspired legislative action by hundreds of Legislators from all regions of the world in support of the Rome Statute system against impunity and empowered South African Courts to ensure full compliance between the domestic legal order and International Law in accordance with the Constitution of free South Africa. President of PGA, Dip. Margarita Stolbizer (Argentina), on behalf of 1400 individual Lawmakers from 143 countries in the PGA network.