The government has withdrawn the International Crimes Bill, which sought to withdraw South Africa from the Rome Statute and repeal its membership of the International Criminal Court (ICC) in favour of immunities for sitting heads of state.

Parliament announced the withdrawal of the bill in routine announcements earlier this week. No reasons were given.

Justice ministry spokesperson Chrispin Phiri told TimesLIVE various factors were considered, which ultimately informed the decision.

“Among those factors was the consideration that South Africa was one of the leading countries which had championed the Rome Statute,” he said.

Phiri said recent trends indicated that a number of African states which had withdrawn had rescinded their decisions and were amenable to reforming the court. 

“On the balance, it remains far more strategic and important for South Africa to spearhead fundamental reforms to multilateral institutions like the ICC from within.”

At its national conference in December, the governing ANC resolved the government should rescind the withdrawal from the ICC and intensify lobbying for the ratification of the Malabo Protocol.

It said it noted its previous position on the continental approach “signalling countries of the continent’s withdrawal and robust engagement had positively impacted and contributed to the ICC being substantively reformed for the better”.

The ANC also noted that only a few African countries had ratified the Malabo Protocol, which it said delayed the establishment of the African Court of Justice and Human Rights.

The ANC had called for the establishment of an African structure that could hold its leaders accountable rather than always relying on international bodies.

The bill was introduced after the ICC request that South Africa arrest then-Sudanese president Omar al-Bashir, an ICC fugitive, who visited the country for an AU summit in June 2015.

Al-Bashir had been indicted by the ICC for war crimes, crimes against humanity and genocide against the people of the Darfur region in Sudan, but South Africa allowed him to leave the country despite a high court order to arrest him.

Tabling the bill in 2016, then justice minister Michael Masutha said this country's membership of the ICC clashed with diplomatic immunity laws. He dared opposition MPs to give him an example in modern history where a sitting head of state was indicted and put to stand trial under international or domestic law.

“What we were being asked to do — for South Africa to be a guinea pig using the ICC to effect induced regime change through external means to the normal diplomatic process of another nation,” he said at the time.

All those who went before the ICC or had been before any other international tribunal were subjected to such proceedings after and not during their stints in government, Masutha said.

This was because “if you indict a sitting president of another country, you are effectively indicting that state itself”, he added.

The ICC later found South Africa had erred in its decision not to arrest Al-Bashir.

TimesLIVE