Rationale and rationality of South African ICC withdrawal: analysis, critique and the way forward
Loading...
Date
2020-12
Authors
Milnes, N.
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
Informed by the strained relationship between the ICC, South Africa and the African Union, and the subsequent 2016 South African notice of withdrawal from the ICC, this dissertation considers whether the African Court on Justice and Human and Peoples Rights (ACJHPR) may be regarded as a viable substitute for the ICC and its system. It also considers the substantive issues that may arise out of South Africa’s withdrawal, should it still wish to withdraw from the ICC, particularly with consideration of the continued protection of human rights and section 7(2) of the South African Constitution.
Considering a closed parameter of factors, the research demonstrates that after an initial strong show of support from Africa, the relationship between the ICC and the AU is disintegrating, mainly as a result of the Al Bashir matter. This led to: (a) South Africa filing a notice to withdraw from the ICC with the UN; and (b) the AU extending the jurisdiction of the ACJHPR to assume jurisdiction over the prosecution of individuals for international crimes.
The dissertation compares the jurisdictions of the ICC with that of the ACJHPR and finds that even though the provisions of the Rome statute were painstakingly deliberated upon, there are still areas that are lacking in clarity.
The research also shows that the Malabo Protocol was drafted in haste, which will not only impact the definitions of the crimes within the court’s jurisdiction but will also place an enormous financial burden on its contributors.
The most concerning aspect of the Malabo Protocol relates to immunity. The immunity provision furthers the view that African leaders are reluctant to contemplate the possibility of being judged for their actions.
In the case of Democratic Alliance v Minister of International Relations and Cooperation and Others, the Executive’s decision to withdraw from the ICC was found to be procedurally unconstitutional. The court did not address the substantive validity of the withdrawal.
In an attempt to address the question of whether a withdrawal from the ICC may constitute an unconstitutional “regressive measure”, the researcher proposed the possibility of the Court declaring that a withdrawal may be constitutional, subject to the withdrawal taking place under court supervision in terms of a structural interdict. In this way, the court may ensure that a withdrawal from the ICC is not only procedurally correct but substantively justified.
In conclusion, the research finds that popular support for the Malabo Protocol by African states seems bleak. It also seems unlikely that in its current form, the Protocol will ever become fully operational, simply because of its budgetary constraints. In the final instance, the research deduces that the ACJHPR will not become a viable substitution for the ICC and its system, mainly because of the immunity provisions in the Malabo Protocol.
The researcher recommends that Article 46A bis of the Malabo Protocol be removed so that no immunity is provided to any individual, regardless of official position. Article 46H of the Malabo Protocol should be amended to clearly provide for continued cooperation with the ICC. Moreover, the AU ought to consider a provision with the effect that cases over which the ICC has jurisdiction are referred to the ICC by the
ACJHR. This stipulation should apply at least until such time as the ACJHR has established itself well enough. To this end, consideration should be given to a gradual phasing in of the crimes within the ACJHR jurisdiction.
Description
Keywords
International Criminal Court (ICC), African Criminal Court, International Criminal Court (ICC) -- South Africa withdrawal, African Court on Justice and Human and Peoples Rights (ACJHPR), Malabo Protocol, Immunity, Jurisdiction, Budget, Human rights -- South Africa, Heads of state, Dissertation (LL.M. (Mercantile Law))--University of the Free State, 2020