Justice and Correctional Services Minister Michael Masutha says South Africa’s exit from the International Criminal Court (ICC) was prompted less by perceived bias and more by “the legal difficulties primarily that we experienced in dealing with the court”‚ especially around diplomatic immunity.
He was participating in a debate on the programme The Stream on Al Jazeera.
Sudanese president Omar al-Bashir was used as an example during the debate. The ICC has issued two warrants for his arrest. Last year‚ when Bashir visited South Africa for the African Union Summit‚ the High Court ruled that he should not be allowed to leave the country until an application calling for his arrest had been heard. Bashir left anyway‚ but earlier his year the Supreme Court upheld the High Court ruling‚ dismissing the South African government’s claim that all delegates attending the summit were subject to diplomatic immunity.
“We were under the erroneous impression that the statute read as a whole was complementary rather than having elements of contradiction‚” said Masutha. “So for example‚ Article 27‚ as we understood it‚ would not be interpreted to suggest that it actually nullifies Article 98… which seems to recognize continued application of the customary international law of diplomatic immunity.”
“Right now South Africa’s diplomatic system is hamstrung‚” he added. “Our ability to engage in diplomatic relations is being limited by this continued legal uncertainty.”
Lawyer Angela Mudukuti‚who also participated in the debate disagreed.
“It’s one thing to talk about discrepancies at the International Criminal Court‚ but if you look at domestic framework and what the courts have said‚ it’s clear… South Africa not only signed and ratified the Rome Statute but South Africa domesticated it… making it domestic law in this country. At that point‚ every single provision for the legislation was carefully considered and a conscious decision was made to make sure that there is no immunity for heads of state or senior government officials‚ because no one is above the law.”
Daily Maverick contributor Saul Musker criticised the exit strategy and the lack of an attempt to “resolve that problem from within the system”. He added: “This decision is effectively throwing the baby out with the bathwater.”
But Masutha countered that South Africa had actually tried to change the ICC from within first. To avoid situations like Bashir in the future‚ the minister said South Africa made representations at the Assembly of State Parties (ASP) in November last year to either “give proper interpretation of the statute… to eliminate the ambiguity” or “amend the statute to create legal certainty”.
Follow the heated social media discussion at #ajstream.
SA’s diplomatic system ‘hamstrung’ - Masutha on ICC withdrawal
Justice and Correctional Services Minister Michael Masutha says South Africa’s exit from the International Criminal Court (ICC) was prompted less by perceived bias and more by “the legal difficulties primarily that we experienced in dealing with the court”‚ especially around diplomatic immunity.
He was participating in a debate on the programme The Stream on Al Jazeera.
Sudanese president Omar al-Bashir was used as an example during the debate. The ICC has issued two warrants for his arrest. Last year‚ when Bashir visited South Africa for the African Union Summit‚ the High Court ruled that he should not be allowed to leave the country until an application calling for his arrest had been heard. Bashir left anyway‚ but earlier his year the Supreme Court upheld the High Court ruling‚ dismissing the South African government’s claim that all delegates attending the summit were subject to diplomatic immunity.
“We were under the erroneous impression that the statute read as a whole was complementary rather than having elements of contradiction‚” said Masutha. “So for example‚ Article 27‚ as we understood it‚ would not be interpreted to suggest that it actually nullifies Article 98… which seems to recognize continued application of the customary international law of diplomatic immunity.”
“Right now South Africa’s diplomatic system is hamstrung‚” he added. “Our ability to engage in diplomatic relations is being limited by this continued legal uncertainty.”
Lawyer Angela Mudukuti‚who also participated in the debate disagreed.
“It’s one thing to talk about discrepancies at the International Criminal Court‚ but if you look at domestic framework and what the courts have said‚ it’s clear… South Africa not only signed and ratified the Rome Statute but South Africa domesticated it… making it domestic law in this country. At that point‚ every single provision for the legislation was carefully considered and a conscious decision was made to make sure that there is no immunity for heads of state or senior government officials‚ because no one is above the law.”
Daily Maverick contributor Saul Musker criticised the exit strategy and the lack of an attempt to “resolve that problem from within the system”. He added: “This decision is effectively throwing the baby out with the bathwater.”
But Masutha countered that South Africa had actually tried to change the ICC from within first. To avoid situations like Bashir in the future‚ the minister said South Africa made representations at the Assembly of State Parties (ASP) in November last year to either “give proper interpretation of the statute… to eliminate the ambiguity” or “amend the statute to create legal certainty”.
Follow the heated social media discussion at #ajstream.
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