Picture: 123RF/STOCKSTUDIO44
Picture: 123RF/STOCKSTUDIO44

The government has started plans to withdraw from the Rome Statute of the International Criminal Court (ICC), putting in place an alternative system for the prosecution of international crimes.

The system for the prosecution of genocide, crimes against humanity and war crimes will come into effect once SA withdraws from the Rome Statute of the ICC.

The government and a number of African countries believe the Rome Statute is in conflict with international law and with some of the provisions of the Diplomatic Immunities and Privileges Act as it does not allow for immunity from prosecution of certain people.

The details of the new system are contained in the International Crimes Bill, which is before parliament’s justice and correctional services committee. Members of the committee will be briefed about the new system on Wednesday.

The bill provides for the investigation and prosecution of international crimes committed inside and outside SA to take place in SA.

The bill provides for life imprisonment for those found guilty of an offence of genocide, a crime against humanity or a war crime

It criminalises international crimes under domestic law and gives extraterritorial jurisdiction to SA courts to adjudicate them. It also provides for the extradition or surrender of those accused of international crimes to foreign states or entities respectively and regulates the immunity of heads of state and diplomats from prosecution for such crimes as is provided for in customary international law.

Crimes committed outside SA can only be prosecuted locally if the accused is an SA citizen; or is not a citizen but is ordinarily resident in SA; or the crime has been committed against an SA citizen or against a person who is ordinarily resident in SA or if the suspect is in SA.

A state of war, threat of war, internal political instability, national security or any state of emergency may not be invoked as a justification for the commission of an international crime.

The bill provides for life imprisonment for those found guilty of an offence of genocide, a crime against humanity or a war crime.

According to the bill, a new system is necessary to ensure SA “does not become a safe haven for people who commit international crimes” once it withdraws from the Rome Statute.

Conflict of interest

The bill acknowledges that international crimes must not go unpunished but also notes that SA plays an important role in resolving conflicts in Africa. It says SA is hindered in its relations with the heads of state of foreign countries — especially those where there are serious conflicts — by the implementation of the Rome Statute of the International Criminal Court Act.

This compels SA to arrest heads of state of foreign countries wanted by the court for genocide, crimes against humanity and war crimes and to surrender such people to the court “even under circumstances where SA is actively involved in promoting peace, stability and dialogue in those countries”.

SA’s resolve to withdraw from the Rome Statute was confirmed by the saga surrounding its failure to arrest then Sudanese president Omar al-Bashir despite a warrant for his arrest having been issued by the ICC for alleged crimes against humanity.

Al-Bashir was deposed earlier in 2019 in a coup after a 30-year dictatorship in Sudan. He visited SA in June 2015 and the government allowed him to leave without arresting him. This led to a reprimand by the ICC.

The DA told Business Day it will oppose the bill, which was mooted in 2017 when former president Jacob Zuma was in office and has since been transferred to the new parliament.

DA justice spokesperson Glynnis Breytenbach said the bill is “a bad piece of legislation which typifies the legacy of the Zuma administration when the ANC acted on all its worst instincts”. She said the bill should be allowed to lapse.

ensorl@businesslive.co.za