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It is unsurprising that those leaders who wish to evade justice seek to shield others accused of injustice, including those indicted of the worst crimes. I do not refer only to President Jacob Zuma’s efforts to entertain Sudan’s President Omar
al-Bashir on South African soil, free of the legal obligation to arrest him and turn him over to the International Criminal Court (ICC), but to all three heads of state who have recently commenced withdrawal proceedings from the ICC, who are either currently entangled with the law or could face prosecution.
Zuma has spent several years dodging 783 counts of corruption, racketeering, fraud and money laundering over the multibillion-dollar arms deal.
Just days before South Africa’s announcement, Burundi declared that it was withdrawing from the ICC. Burundian President Pierre Nkurunziza has been accused of presiding over a campaign of terror and murder following his controversial bid for a third term as president in 2015. In April, ICC prosecutor Fatou Bensouda announced that her office would conduct a preliminary examination into reports of killing, imprisonment, torture, rape and other crimes.
Following on South Africa’s notice to withdraw, President Yahya Jammeh of Gambia indicated that his country would do the same. Human rights groups have implicated Gambian security forces in large numbers of abductions, arbitrary detentions, torture and killings. Jammeh himself has been accused of ordering killings. He has muzzled the press and issued serious threats of harm against members of the lesbian, gay, bisexual and transgender community.
It is apparent that the South African government’s self-inflicted al-Bashir debacle, which involved the defying of a court order and humiliating defeat before three courts, prompted the ICC withdrawal decision. The authorities apparently believe that once South Africa has served the 12-month notice period, during which it will “remain obligated under the Rome Statute”, it will be free to invite the likes of al-Bashir to the country. In his media briefing on October 21 2016, Justice Minister Michael Masutha asserted that “the effect of withdrawal from the Rome Statute … completes the removal of all legal impediments inhibiting South Africa’s ability to honour its obligations relating to the granting of diplomatic immunity …”
You would be forgiven for thinking that, following South Africa’s withdrawal from the ICC, it would be free of any and all requirements under the Rome Statute. You would be wrong. Article 127(2) stipulates that a withdrawing state remains bound by all obligations that arose while it was a party to the statute. In particular, a state’s “withdrawal shall not affect any cooperation with the court in connection with criminal investigations and proceedings in relation to which the withdrawing state had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective…”
So, any cooperation a state was liable to provide in relation to any investigation or proceeding, which had commenced prior to the withdrawal date, persists until the case is resolved or withdrawn. This includes the obligation of arrest and surrender.
The ICC’s first arrest warrant for al-Bashir in 2009 was in respect of various counts of war crimes and crimes against humanity; and a second warrant was issued in 2010, which disclosed three counts of genocide. South Africa’s obligation to arrest and surrender him arose from these dates. Such warrants constitute criminal proceedings in respect of which South Africa has a duty to cooperate.
One of the lead negotiators on the withdrawal clause at the 1998 Diplomatic Conference in Rome, establishing the ICC, Professor Roger S Clark, confirms that, unless the al-Bashir warrants are withdrawn, they remain “a continuing obligation” under the “duty to cooperate”, and that the conference “wanted to leave nothing to chance”, hence the unequivocal language of article 127.
It is ironic that the very reason for South Africa’s withdrawal from the ICC, the desire to escape from the obligation to arrest al-Bashir, will endure.
On December 1, Gambians went to the polls and rejected the abusive presidency of Jammeh. They elected Adama Barrow, who campaigned for human rights and the rule of law. He stated that “we will ensure that we respect all international agreements we are a signatory to and we will take the country back to the Commonwealth and the International Criminal Court … and other international institutions advocating good governance”.
I suspect that if South Africans and Burundians were given the opportunity of deciding whether or not to stay in the ICC, like the Gambians, they too would see through the doublespeak of their self-serving masters and deliver them a crushing repudiation.
Varney is a senior adviser to the International Center for Transitional Justice
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