South Africa & the Domestication Question: A commentary on the ICC denunciation
By Matsiko Samuel
A conversation on the withdrawal of African states from the International Criminal Court and its impact on States Parties that have domesticated the Rome Statute is way overdue. The domestication question is a hitherto unexplored but important issue. Let’s take a hypothetical scenario where an African state has ratified the Rome Statute and domesticated the statute into national law through an act of parliament. Then the executive withdraws from the treaty without repealing the act through parliament. Such a hypothetical scenario raises very important questions for academic debate:
- What is the legality of the act at the time of withdraw?
- How would a domestic court that has a pending case that relates to the act deal with such a case?
- How would the courts address issues of cooperation with regard to a domestic law that provides for cooperation in terms of arrest and surrender to an institution established by the treaty in question?
Such questions are specific to the recent withdrawal of South Africa from the ICC. On 19th October 2016, the executive branch of the South African government exercised its “prerogative” powers to withdraw from the International Criminal Court. South Africa ratified the Rome Statute on 17 July 1998 and took further steps to domesticate the treaty into national legislation. South Africa’s parliament drafted the implementation of the Rome Statute which became law on 16 August 2002.
The preamble of the act provides that South Africa is committed to- bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible,pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court. There is no doubt that the exit from the ICC was sparked by the South Africa’s failure to arrest Sudan president Omar Bashir a head of state in June 2015 wanted for genocide, war crimes and crimes against humanity in contravention of its commitments and obligations. The domestication question attempts to interrogate as to whether the withdraw of South Africa from the ICC without public or legislative involvement is fundamentally and procedurally flawed?
In addressing the questions and mapping of state practice in international law, it is settled that when a treaty is domesticated in a non-monist state it gets a life of its own separate and distinct from the treaty. Thus the domestic law is applicable until a legislative process to repeal the law has occurred. A plausible example of an attempted legislative process to repeal a domestic law inspired by a treaty is the so called Brexit United Kingdom Great Repeal bill of 2016. The bill attempts to end European Union law enshrined in the1972 European Communities Act and trigger article 50 of the Lisbon treaty. Back to South Africa, despite the fact that the Rome Statute provides that the withdraw notice shall take effect one year after deposit. It is without doubt that until a process to repeal the International Criminal Court Act 27 of 2002 is finalised South Africa is still obliged to fulfil its commitments. This will create a legal and political paradox for South Africa on the 22nd day of November 2016. The South African Constitutional Court in addressing the Bashir case will be put to test to either cooperate with ICC on the arrest and surrender as enshrined in section 8 of the International Criminal Court act or succumb to the effects of “realpolitik” in addressing the nascent and yet unsettled field of International Criminal Law.
In a nutshell, accountability for international atrocity crimes and human rights violations in a not so perfect international criminal justice system ought to be the dominant script of any international criminal justice system. In the spirit of the African group for justice and accountability i believe that the pessimistic argument that justice not being served elsewhere (the west) should not be served anywhere (Africa) is fundamentally flawed and merely diversionary. Inspired by the words of Atonnio Cassese better to have half a loaf than simply pie in the sky.
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