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SOUTH AFRICAN INSTITUTE FOR ADVANCED CONSTITUTIONAL, PUBLIC, HUMAN RIGHTS AND INTERNATIONAL LAW

and

SOUTH AFRICAN RESEARCH CHAIR IN INTERNATIONAL LAW

Submission on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill

_____________________________________________________________________________________

Submitted to:

Mr V Ramaano

The Portfolio Committee on Justice and Correctional Services

Per email: vramaano@parliament.gov.za

Submitted by:

The South African Institute for Advanced Constitutional, Public, Human Rights and International Law

University of Johannesburg

and

The South African Research Chair in International Law

University of Johannesburg

Contact: Professor David Bilchitz

davidb@saifac.org.za

and

Professor Hennie Strydom

hstrydom@uj.ac.za

Jointly drafted by: Dr Emile Zitzke, Dr Mispa Roux, Prof Hennie Strydom and Prof David Bilchitz

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EXECUTIVE SUMMARY

• In collaboration, the South African Institute for Advanced Constitutional, Public,

Human Rights and International Law, and the South African Research Chair in

International Law (both from the University of Johannesburg) welcome the

opportunity to make a written submission on the proposed Implementation of the

Rome Statute of the International Criminal Court Act Repeal Bill, 2016.

• We would also appreciate the opportunity to make oral submissions.

• Concisely, we submit that the Bill is unconstitutional for two main reasons. Firstly,

the Bill falls short of the requirement of rationality (grounded in the foundational

constitutional value of the rule of law) with which all Acts must conform. In short,

there is no rational connection between the Bill and the reasons proffered by

government for the Bill’s promulgation. Secondly, in addition to the irrationality of

the Bill, it substantively runs counter to central and foundational dimensions of the

South African constitution including its foundational values and the duty on the state

to respect, protect, promote and fulfil fundamental rights. As such, it is our view that

the Bill should not be passed and, if it is, it will be unconstitutional.

• It is our submission that the Bill is unconstitutional because it is stained with

irrationality, which breaches the rule-of-law principle in the Constitution of the

Republic of South Africa, 1996, in that government purports to –

o give effect to its international-law obligation to provide heads of state with

immunity, while that obligation is not unlimited – immunity in international

law is justifiably limited by the provisions of the Rome Statute of the

International Criminal Court (1998) and by South Africa’s own

Implementation of the Rome Statute of the International Criminal Court Act

27 of 2002, and this limitation was contemplated by parliament when initially

passing the latter Act;

o secure peace on the African continent but cannot show how South Africa’s

withdrawal from the International Criminal Court, effectively sanctioning

genocide, crimes against humanity, war crimes, and crimes of aggression

without providing victims with alternative remedies, would aid in promoting

peace; and

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o remain committed to the fight against impunity but nevertheless provides no

alternative mechanism internally and externally for facilitating the fight after

withdrawal from the International Criminal Court.

• The Bill is furthermore unconstitutional because it is a miscarried attempt at

circumventing erga omnes obligations and jus cogens norms. In so doing, the Bill

desecrates the foundational values, principles, general state obligations in relation

to fundamental rights and constitutional spirit of the Republic of South Africa which

–

o per the Preamble of the Constitution, envisages a “democratic South Africa”

that can “take its rightful place as a sovereign state in the family of nations”;

and

o per section 7(2) of the Constitution, obliges the state to “respect, protect,

promote and fulfil the rights in the Bill of Rights”.

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1. INTRODUCTION 1.1. The South African Institute for Advanced Constitutional, Public, Human Rights

and International Law ("SAIFAC") is a research centre of the Faculty of Law at

the University of Johannesburg that conducts advanced research in its areas of

focus which includes fundamental rights, public law and constitutional law. It is

also concerned with the promotion and protection of constitutional and human

rights in South Africa.

1.2. The South African Research Chair in International Law (“SARCIL”) is an

initiative of the National Research Foundation. Professor HA Strydom,

professor in international law at the University of Johannesburg, is the

incumbent of the Chair. The research activities of the Chair are broadly informed

by and related to the three pillars on which the United Nations is founded,

namely international peace and security, economic and social development and

the protection of human rights. In all three areas, the African continent faces

serious challenges, which are interlinked in various ways.

1.3. In collaboration, SAIFAC and SARCIL welcome the opportunity to make written

submissions on the proposed “Implementation of the Rome Statute of the

International Criminal Court Act Repeal Bill, 2016” (the "Bill"). We would also

appreciate the opportunity to make oral submissions.

1.4. Concisely, SAIFAC and SARCIL submit that the Bill is unconstitutional for two

main reasons. Firstly, the Bill falls short of the requirement of rationality

(grounded in the foundational constitutional value of the rule of law) with which

all Acts must conform. In short, there is no rational connection between the Bill

and the reasons proffered by government for its Bill’s promulgation. Secondly,

in addition to the irrationality of the Bill, it substantively runs counter to central

and foundational dimensions of the South African constitution including its

foundational values and the duty on the state to respect, protect, promote and

fulfil fundamental rights. As such, it is our view that the Bill should not be passed

and, if it is, it will be unconstitutional.

1.5. To justify our view outlined above, our argument is presented in the three

remaining parts of this submission. Part 2 explains the constitutional imperative

of rationality and why the objects of the Bill, provided in the “Memorandum on

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the Objects of the Implementation of the Rome Statute of the International

Criminal Court Act Repeal Bill, 2016” (“Memorandum”), are not rationally

achievable through the promulgation of the Bill. In Part 3 we emphasise the

important function of the International Criminal Court (“ICC”) in the promotion of

human rights in the international community, and why, as a matter of

substantive principles drawn from the “Constitution of the Republic of South

Africa, 1996” (“the Constitution”), South Africa should not withdraw its ICC

membership. Part 4 concisely summarizes the main arguments.

2. THE IRRATIONALITY ARGUMENT

2.1. The Constitutional Imperative of Rationality

2.1.1. Section 1(c) of the Constitution entrenches the “rule of a law” as one of the

founding values of the South African state. The Constitutional Court has

developed this requirement to involve the principle that in a state based on the

rule of law, every law and exercise of public power must, at the very least, be

lawful and rational.1

2.1.2. The constitutional imperative of rationality responds to the historical fact that

the apartheid state was based on a culture of authoritarianism (where public

power was abused arbitrarily) by promoting a culture of justification (where

every exercise of public power must be justified).2 As the Constitutional Court

held in S v Makwanyane:3

We have moved from a past characterised by much which was arbitrary and unequal

in the operation of the law to a present and a future in a constitutional state where state

action must be such that it is capable of being analysed and justified rationally. The idea

of the constitutional state presupposes a system whose operation can be rationally

tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with

these core concepts of our new constitutional order.

2.1.3. The effect of this notion of justification is that law and executive conduct may

be reviewed by a court on the basis of rationality if, on the evidence available,

1 See generally J Fowkes “Chapter 13: Founding Provisions” in S Woolman & M Bishop Constitutional Law of South Africa (2nd Ed, 2014) and Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa 2000 (2) SA 674 (CC) paras 85 and 90. 2 E Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1993) SAJHR 31 at 32; and K Klare “Legal Culture and Transformative Constitutionalism” (1998) SAJHR 146 at 147. 3 S v Makwanyane 1995 (3) SA391 (CC) para 156.

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a decision cannot be justified and is therefore arbitrary.4 The test is whether

the law – for purposes of this submission, proposed legislation – is rationally

connected to a legitimate government purpose. The rationality test provided by

our courts involves two questions: Firstly, whether the proposed legislation is

intended to serve a legitimate government purpose. Secondly, whether the

proposed legislation does in fact serve the said government purpose.5

2.1.4. In its Memorandum, government provides two main reasons for its intention to

withdraw from the ICC by passing the Bill. First, that South Africa’s membership

of the ICC clashes with the state’s obligation to ensure diplomatic immunity for

heads of state.6 Second, that South Africa’s membership of the ICC hinders

the government’s involvement in the promotion of peace, stability and dialogue

on the African continent.7 In principle, the promotion of peace and the

safeguarding of diplomatic immunity could be legitimate government purposes

but it must nevertheless still be shown that the proposed Bill – which repeals

the “Implementation of the Rome Statute of the International Criminal Court Act

27 of 2002” (“the ICC Act”) – does in fact serve those purposes. It is our

submission that it does not. Neither of the grounds relied upon by the state to

justify the proposed bill are supported by evidence or logical argument and

cannot, for this reason, be rational. We respond to government’s contentions

directly below.

2.2. The Irrationality of the Bill: Illogical Reasons

2.2.1. Alleged Government Purpose 1: Securing the Immunity of Heads of State and

Government

• In essence it is the government’s argument that the ICC Act negates the

immunities provided to foreign heads of state and government in terms of

the “Diplomatic Immunities and Privileges Act 37 of 2001” (“Diplomatic

4 Academic works on rationality review include: A Price “Rationality Review of Legislation and Executive Decisions: Poverty Alleviation Network and Albutt” (2010) SALJ 580; M Bishop “Rationality is Dead! Long Live Rationality! Saving Rational Basis Review” (2010) SAPL 312; A Price “The Content and Justification of Rationality Review” (2010) SAPL 346; and L Kohn “The Burgeoning Requirement of Rationality and the Separation of Powers: Has Rationality Review Gone too Far?” (2013) SALJ (2013) 810. 5 See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) paras 56–8; New National Party v Government of South Africa 1999 (3) SA 191 (CC) paras 19 and 24; Pharmaceutical Manufacturers Association of South Africa: In re Ex parte President of South Africa 2000 (2) SA 674 (CC) paras 85 and 90; United Democratic Movement v President of South Africa (No 2) 2003 (1) SA 495 (CC) para 55; Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) paras 74–9; Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC); and Poverty Alleviation Network v President of South Africa 2010 (6) BCLR 520 (CC). 6 Memorandum paras 1.3 – 1.5. 7 Memorandum para 1.2.

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Immunities Act”). As such the argument is that the ICC Act is in conflict

with and inconsistent with the Diplomatic Immunities Act. This fact justifies

the repeal of the ICC Act if South Africa is still to provide immunity to heads

of state and government.

• The position South Africa finds itself in is not unique and it happens

frequently that the implementation of international treaty obligations by

means of legislation causes states to amend previous laws to remove or

amend conflicts. Thus, the obvious route for parliament was to amend the

conflicting provisions in the Diplomatic Immunities Act and other similar

laws to enable South Africa to comply with its international obligations under

the “Rome Statute of the International Criminal Court (1998)” (“Rome

Statute”).

• With this in mind it must be noted that under article 27 of the “Vienna

Convention on the Law of Treaties (1969)” (“Vienna Convention”), a state

may not invoke the provisions of its internal law as justification for its failure

to perform treaty obligations. The importance of this provision is

strengthened by article 26 of the Vienna Convention which imposes on

parties to a treaty the duty to perform the treaty in good faith. In its 1966

“Draft Articles and Commentaries on the Law of Treaties”, the International

Law Commission referred to the “good faith” obligation as a “fundamental

principle of the law of treaties” and a “legal principle” that is an integral part

of the pacta sunt servanda rule.

• The rationality of the government’s immunity argument is brought into

question by the fact that at the time when the ICC Act served before

parliament the Diplomatic Immunities Act already existed. We are therefore

entitled to assume that parliament must have contemplated that the two

enactments could have conflicting provisions and that parliament applied

its mind to the matter then. Indeed, in terms of section 4(2) of the ICC Act,

parliament unequivocally did away with immunity as a defence to a crime

or a ground for a possible reduction in sentence “[d]espite any other law to

the contrary, including customary and conventional international law”. This

point is recognized in the Memorandum that seeks to justify the repeal of

the ICC Act.

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• Parliament therefore clearly contemplated that the ICC Act was to be

understood to limit its obligations in terms of the Diplomatic Immunities Act.

Indeed, it is a basic presumption of statutory interpretation that, where

obligations conflict, a newer Act supersedes an older one. It thus makes no

sense rationally to use head of state immunity as a reason for repealing

legislation that was passed partially to override that very immunity.

• The only option for parliament is to make out a substantive case why it must

reinstate head of state immunity for international crimes. We will shortly

consider the second main argument on promoting peace on the continent.

Before we do so, we consider another claim by the government that it was

required to do so in terms of its customary international law obligations. In

its Declaratory Statement to the United Nations, the South African

government relied on customary international law to defend its position on

the importance of heads of state immunity. There is indeed much dispute

on whether customary international law does allow for immunity for

international crimes.8 Even if this is correct, however, there is nothing that

prevents parliament to legislate differently to give effect to its obligations

under the Rome Statute (a treaty). The argument for this position is even

stronger given that customary international law ranks below legislation in

terms of section 232 of the Constitution. Thus parliament clearly intended

in terms of the ICC Act to limit head of state immunity and was entitled to

do so and, override customary international law, if need be. The conflict

with the Diplomatic Immunities Act cannot therefore be a reason in itself to

repeal the legislation.

• There was good reason why South Africa decided to limit head of state

immunity. Indeed, unfortunately, there are several examples of heads of

state or government on the African continent that committed international

crimes or are under investigation for having committed such crimes: we

mention but a few examples. These leaders were often autocrats who

wielded absolute power within the state after coming into power after a

military coup.

8 See eg Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) 14 February 2002 ICJ Reports (Judgment); Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) 14 February 2002 ICJ Reports (Dissenting Opinion Judge van den Wyngaert); and M Roux ‘Erga omnes obligation to prevent and prosecute gross human rights violations’ in African Yearbook on International Humanitarian Law (2012) 98 at 126 – 133.

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o Idi Amin’s rule in Uganda was characterised by persecution of ethnic

minorities and political opponents, and widespread extrajudicial

killings. However, he never stood trial for any of these gross human

rights abuses.

o Muammar Gaddafi from Libya was in power from 1969 until his death

in 2011. The ICC issued a warrant of arrest for Gaddafi for crimes

against humanity, specifically for murder and persecution, but the

case was terminated upon his death. His son, Saif Al-Islam Gaddafi,

is currently also charged with the same crimes at the ICC.

o Charles Taylor, former President of Liberia, was charged with crimes

against humanity and war crimes (including the enlistment of child

soldiers) by the Special Court for Sierra Leone for his involvement in

that civil war. He was found guilty on all charges, and is currently

serving a sentence.

o Rwanda has been plagued by political unrest since its independence

in 1962, and persecution and violence against Tutsis and moderate

Hutus occurred long before the outbreak of the genocide on 7 April

1994. The presidential election was won by Grégoire Kayibanda in

1962, and he immediately instituted strict anti-Tutsi

measures. However, his presidency came to an abrupt end in July

1973 after Juvénal Habyarimana orchestrated a successful coup

and became president. Habyarimana openly held Hutu extremist

views, and the genocidal policy to exterminate Tutsis took shape

under his rule. However, after his murder, a new government was

established by the Hutu Power political party on 9 April 1994, with

Jean Kambanda as the Prime Minister. The Rwandan genocide

broke out on 7 April 1994, and over the next one hundred days an

estimated 800 000 people were killed.

o The former ruler of Chad, Hissene Habre, was convicted of crimes

against humanity. These involved rape, sexual slavery, and the

killing of 40 000 people between 1982 and 1990.

o Famously, an incumbent African leader who has been charged by

the ICC and a warrant issued for his arrest is Sudan’s President

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Omar Al Bashir. Bashir is charged with playing an essential role in

co-ordinating, controlling and ordering a counter-insurgency plan by

the government of Sudan’s armed forces in Darfur which involved

the commission of major international crimes. These crimes include

crimes against humanity, war crimes and the crime of genocide and

more, specifically, involved the systematic destruction and pillage of

villages in Darfur inhabited by the particular ethnic groups of the Fur,

Masalit, and Zaghawa; murdering and exterminating thousands of

civilians; subjecting thousands of civilian women to rape; poisoning

the wells and water pumps of the towns of these ethnic groups and

encouraging other tribes to resettle in these villages.9

2.2.2. Alleged Government Purpose 2: Promoting Peace on the African Continent

• The government argues that it is a founding member of the African Union

and plays an important role in the peaceful resolution of conflicts on the

African continent. The Memorandum justifying the withdrawal claims that the

ICC Act hinders the government in its pursuit of “peace, stability and

dialogue” by requiring that it arrest leaders who are wanted by the ICC for

committing international crimes.

• It is very hard to understand the government’s claims in this regard as having

any foundation in logic: why does the ICC Act in any way prevent the

government from attempting to resolve conflicts in other parts of Africa? The

main requirement the government focuses upon is that it is required to arrest

those wanted by the ICC for the commission of international crimes within

South African territory. Yet, it is not necessary to invite leaders to South

Africa in order to resolve conflicts in other parts of Africa: it is quite possible

for South Africa to exercise its diplomacy outside its borders. Leaders

wanted by the ICC will clearly be warned that given South Africa’s

membership of the ICC and the ICC Act, they may be arrested on coming to

South Africa. This is an important disincentive for those leaders committing

international crimes: their travel may well be restricted. It is hard though to

see why such a travel restriction in any way prevents or frustrates peace-

making efforts.

9 See the warrant and charges at the pre-trial stage of the Prosecutor v Omar Hassan Ahmad Al Bashir available at https://www.icc-cpi.int/darfur/albashir.

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• Indeed, the South African government seems to accepts on the one hand

that “peace and justice must be viewed as complimentary and not mutually

exclusive” (Declaratory Statement p 2). On the other hand, it appeals to what

it claims to be the realities of an imperfect world which it claims makes the

quest for justice and accountability incompatible with the competing

objectives of peace, security and stability.

• Yet, the government has provided no evidence or logical reasoning to show

that it is impossible to promote peace within a framework which requires

accountability for international crimes. Indeed, there are strong counter-

examples to this assertion: the protracted conflict between the Colombian

government and the FARC rebels expressly recognised that impunity for

international crimes was not an option. Creative legal solutions were found

both to respect international criminal law (and Colombia’s obligations as a

member of the ICC) as well as the need to move to an historic peace

agreement.

• Indeed, part of the rationale for international justice is that it provides a

recognition that there will be no impunity for international crimes. The edifice

of international justice and the sanctions contained therein seek to provide

a deterrent to the commission of international crimes. The commission of

such crimes, as is recognised in the Preamble of the Rome Statute,

“threaten the peace, security and well-being of the world”. The government’s

arguments in this regard are thus deeply flawed: it is not the Rome Statute

or ICC Act that threaten peace – it is impunity for international crimes that

does so. Failing to impose accountability on heads of states for such crimes

allows them to commit such crimes with impunity and provides an incentive

for them to stay in power indefinitely which exacerbates conflicts. Far from

enhancing peace in Africa, South Africa’s withdrawal from the ICC will render

it more difficult to attain and is thus irrational.

2.2.3. A Final Point of Contradiction: South Africa’s Alleged Commitment to Fight

against Impunity

• In its Declaratory Statement to the United Nations, South Africa has

reiterated its commitment to human rights and the fight against impunity.

Yet, as is clear from its reasons for withdrawal, it wants certain categories of

politicians still to enjoy impunity, no matter how long a conflict situation and

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its attendant peace efforts last or how many atrocities are committed while

the international efforts for peace are unfolding.

• What is conspicuously absent in the government’s declaratory documents is

an indication of the measures the government will put in place, once it has

withdrawn from the ICC and the ICC Act has been repealed, to combat

impunity and to provide remedies for the victims of the atrocities committed

in the countries where the government is pursuing its peace efforts. For

instance, do these efforts coincide with a strategy to bring the perpetrators

of the atrocities to justice at some point or another?

• The Memorandum in favour of the repeal of the ICC Act provides no

alternative proposal on the actions the government will take to impose

accountability for international crimes and remedies for the victims of these

crimes. A state of legal uncertainty will therefore be created for the

prosecution in South Africa of most international crimes. Indeed, whilst it has

been argued that many of these crimes form part of customary international

law, the very reason for the passing of a statute like the ICC Act is to clarify

South Africa’s obligations in relation to and the procedures involved with the

prosecution of international crimes. At present, the Bill does not provide for

the retention of the Rome Statute crimes in South African criminal law. What

we are therefore left with are only the codification in South African law of a

much more limited set of international crimes that are contained in the

“Geneva Conventions Implementation Act 8 of 2012” and the “Prevention of

Torture Act 13 of 2013”. As we argue below, South Africa would also be

required to prosecute crimes contained in customary international law

though, the exact contours thereof are much less definite and subject to

more dispute than the codification that took place in the Rome Statute and

the ICC Act which implements it into South African law.

2.3. Conclusion on Rationality

• We have thus far argued that the justifications the government has provided

for the withdrawal from the ICC and the repeal of the ICC Act are so weak

that they do not meet the basic constitutional standards of rationality

required by our Constitution. We now turn to substantive arguments why the

withdrawal conflicts with the underlying principles and rights of the South

African Constitution.

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3. THE ARGUMENT ON CONSTITUTIONAL PRINCIPLE

3.1. The Establishment of the ICC and its Importance

3.1.1. The universal revulsion felt at the atrocities committed by the Nazi regime

during the Holocaust in the Second World War brought about a turning-point in

the tenets of the international criminal justice system. For the first time in

history, the International Military Tribunal held at Nuremberg10 prosecuted war

criminals on the basis of individual criminality,11 and the London Charter

provided that the official capacity of the perpetrators was irrelevant for

purposes of prosecution.12 Innumerable acts of savagery committed by the

European Axis powers that came to light soon after the war engendered a

sense of urgency in the international community not only to punish perpetrators

for their crimes, but also to impose stringent obligations on states in an attempt

to prevent similar atrocities from being committed in the future. The London

Charter had jurisdiction over crimes against peace,13 war crimes,14 and crimes

against humanity.15 The Holocaust-acts were not criminalised as “genocide” in

the London Charter, but as “persecutions on political, racial or religious

grounds” under the broader international crime of “crimes against humanity”.16

“Genocide” was criminalised only in 1948 by the Convention on the Prevention

and Punishment of the Crime of Genocide.17 Both genocide and crimes

against humanity were at first considered an expansion or “outgrowth” of war

crimes.18 The only category of crime which was accepted as having an

10 The London Charter of the International Military Tribunal was signed on 8 August 1945 by the United States, France, the United Kingdom, Northern Ireland and the USSR. The purpose was to prosecute and punish the main criminals of the European Axis powers for crimes committed during the Second World War. 11 Article 6 of the London Charter. Before the Nuremberg Tribunal, the “Laws of Humanity” and “Crimes Against Civilisation and Humanity” were provided for in international instruments, but the Nuremberg Tribunal was the first to prosecute individuals. See: MC Bassiouni Crimes Against Humanity in International Criminal Law (1999) at 60 – 69; NB Jørgensen The Responsibility of States for International Crimes (2003) at 4 – 15. 12 Article 7 of the London Charter. 13 Article 6(a) of the London Charter. 14 Article 6(b) of the London Charter. 15 Article 6(c) of the London Charter. 16 Article 6(c) of the London Charter. A possible explanation for this is that the “term and concept of genocide” was created only in 1944 by Raphael Lemkin in Axis Rule in Occupied Europe. It only came into common usage a number of years later. It is interesting to note that the term “genocide” was not used once in the entire Nuremberg Judgment, although it was used in the Indictments of the War Criminals, as well as mentioned in the Trials. See also: Judicial Decisions: International Military Tribunal (Nuremberg), Judgment and Sentences reprinted in 41 AJIL (January 1947) 172; R Lemkin “Genocide as a Crime under International Law” in AJIL (1947) 145. 17 The General Assembly approved the Convention on 9 December 1948, and it entered into force on 12 January 1951. 18 MC Bassiouni Crimes Against Humanity in International Criminal Law (1999) at 41 – 88.

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international character before the beginning of the twentieth century was that

of war crimes.19 War crimes were therefore pivotal to the gradual process

during which genocide and crimes against humanity became autonomous

international crimes.

3.1.2. The ICC was established in the wake of the gross human rights violations

committed in the Former Yugoslavia and Rwanda as a permanent,

independent international criminal court with jurisdiction to investigate and

prosecute the “most serious crimes of concern to the international community

as a whole”.20 The international crimes of genocide, crimes against humanity,

war crimes, and the crime of aggression are considered gross human rights

violations, and are universally condemned. It is of interest to all states in the

international community as a whole not only to prevent the commission of these

gross human rights violations, but also to end impunity by holding perpetrators

individually criminally responsible for their crimes. This is a “community

obligation”21 that is essentially an erga omnes obligation,22 which the

International Court of Justice (“ICJ”) defined as follows in the Barcelona

Traction Case:23

… an essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis-à-vis another State in the

field of diplomatic protection. By their very nature the former are the concern of all

States. In view of the importance of the rights involved, all States can be held to have

legal interest in their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the

outlawing of acts of aggression, and of genocide, as also from the principles and rules

concerning the basic rights of the human person, including protection from slavery and

racial discrimination. Some of the corresponding rights of protection have entered into

19 A Cassese International Criminal Law (2008) at 28 – 31. 20 Preamble and Articles 1, 5(1), 6 – 8 bis of the Rome Statute. See also: C De Than and E Shorts (Eds) International Criminal Law and Human Rights (2003) at 9 – 15; A Orakhelashvili Peremptory Norms in International Law (2006) at 288 – 319. 21 A Cassese International Law (2005) at 185; 200 – 211; A Cassese International Criminal Law (2008) at 7. 22A Cassese International Law (2005) at 185; J Dugard International Law: A South African Perspective (2011) at 38 – 41; A Orakhelashvili Peremptory Norms in International Law (2006) at 53 – 64; 66; MC Bassiouni “International Crimes: Jus Cogens and Obligatio Erga Omnes” in LCP (1996) 63. Dugard states that the existence of jus cogens norms and erga omnes obligations is a contentious issue, and not supported uniformly in the international sphere. See also: P Weil “Towards Relative Normativity in International Law?” in AJIL (1983) 413. 23 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) 5 February 1970 ICJ Reports 3 (Judgment) paras 33 – 34 at 32.

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the body of general international law … others are conferred by international

instruments of a universal or quasi-universal character.24

3.1.3. Erga omnes obligations form part of a corpus of higher norms and rules in

public international law.25 In the dissenting opinion in the East Timor case,

Judge Weeramantry stated that “a disregard of erga omnes obligations makes

a serious tear in the web of international obligations, and the current state of

international law requires that violations of the concept be followed through to

their logical and legal conclusion”.26

3.1.4. The concept of jus cogens norms (peremptory norms) in international law are

closely connected to erga omnes obligations,27 and are defined by Article 53

of the Vienna Convention as follows:

a peremptory norm of general international law is a norm accepted and recognized by

the international community of States as a whole as a norm from which no derogation

is permitted and which can be modified only by a subsequent norm of general

international law having the same character.

3.1.5. In the 2001 “Commentary to the Articles on State Responsibility”, the

International Law Commission stated that “those peremptory norms that are

clearly accepted and recognised include the prohibitions of aggression,

genocide, slavery, racial discrimination, crimes against humanity and torture,

and the right to self-determination”.28

3.1.6. What makes these compulsory norms so important is that they are not there

for the purpose and use of individual states, but serve the “higher interest of

the whole international community”.29 Since these norms or rules are not used

24 Barcelona Traction paras 33 – 34 at p 32. 25 A Orakhelashvili Peremptory Norms in International Law (2006) at 104 – 127; FF Martin “Delineating a Hierarchical Outline of International Law Sources and Norms” 65 in SLR (2002) 333; T Meron “On a Hierarchy of International Human Rights” in 80 AJIL (1986) 1; MM Whiteman “Jus Cogens in International Law, with a Projected List” in 7 GJICL (1977) 609. 26 East Timor (Portugal v Australia) 30 June 1995 ICJ Reports 90 (Judgment) at 215 – 216. 27 A Cassese “The Character of the Violated Obligation” in J Crawford, A Pellet, S Olleson (Eds), and K Parlett (Assistant Editor) The Law of International Responsibility (2010) 415 at 417. 28 Commentary to Article 26, par 5 at 208, of the International Law Commission’s Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Official Records of the General Assembly, Fifty-Third Session, 23 April – 1 June, and 2 July – 10 August 2001, Supplement 10 (A/56/10) (“ILC Report”). See also in this regard: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) 3 February 2006 ICJ Reports 1 (Jurisdiction of the Court and Admissibility of the Application) par 64 at 29 – 30; I Brownlie Principles of Public International Law (2010) at 511; A-L Vaurs-Chaumette “Peoples and Minorities” in J Crawford, A Pellet, S Olleson (Eds), and K Parlett (Assistant Editor) The Law of International Responsibility (2010) 993 at 998; “Ius Cogens”, JA Frowein, Volume VI, MPEPIL, (2012) 443. 29 A von Verdross “Jus Dispositivum and Jus Cogens in International Law” in 60 AJIL (1966) 55 at 58.

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for self-interest, they become untouchable or “absolute”, as it were.30

Consequently, a jus cogens norm may also conflict with a customary

international law rule or with resolutions of international organisations. In such

instances the result is the same – the customary law rule and the resolution

will be rendered invalid.31

3.1.7. Breaches of both jus cogens norms and erga omnes obligations will entail the

international responsibility of the perpetrator state. Therefore, “a state is under

an obligation to act in accordance with a peremptory norm, [and] any breach

of this norm entails the responsibility of that state”.32 The International Law

Commission also stated that jus cogens norms “can attract additional

consequences, not only for the responsible State but for all other States”.33 In

turn, an erga omnes obligation is described as a “concept of State

responsibility”, since the obligation is owed to the international community as

a whole, and any state is entitled to bring a claim against the perpetrator state,

even if it is on behalf of the injured state, if the injured state cannot act on its

own.34

3.1.8. The international crimes over which the ICC has jurisdiction, are also

considered to reflect customary international law. Norms of customary

international law from which no derogations are allowed are jus cogens norms,

and include the prohibition of genocide, crimes against humanity, war crimes

and the crime of aggression.35 Both erga omnes obligations and jus cogens

norms reflect customary international law,36 and –

the two categories coincide, at least as far as customary international law is concerned.

It would indeed be difficult to pinpoint an obligation that is imposed by a customary rule

of international law to protect values regarded as fundamental in the international

community, and which is derogable through a bilateral or multilateral treaty. Indeed, to

contend that an obligation erga omnes may be derogated from would amount to

denying its very nature as an obligation designed to protect fundamental values, the

respect for which is an interest of the whole international community. It would amount

30 Ibid. 31 ILC Study on Fragmentation of International Law, UN Doc A/CN.4/L.682 (14 April 2006) para 367. 32 NB Jørgensen The Responsibility of States for International Crimes (2003) at 90. 33 Commentary to Chapter III of Part Two, par 7 at 282, ILC Report. 34 S Kadelbach “Jus Cogens, Obligations Erga Omnes and other Rules – The Identification of Fundamental Norms” in C Tomuschat and J-M Thouvenin (Eds) The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (2006) at 21 – 26. See also the Commentary to Chapter III of Part Two, par 7 at 282, ILC Report. 35 BD Lepard Customary International Law: A New Theory with Practical Applications (2010) at 7. 36 BD Lepard Customary International Law: A New Theory with Practical Applications (2010) at 267 – 269.

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to admitting that two or more states, by concluding an agreement, would be allowed

legitimately to infringe on an interest shared by the whole international community. Both

the notion of erga omnes and that of jus cogens aim at the same result, that is, to

prevent states from freely disposing of, and disregarding, values safeguarded by

international customary rules.37

3.1.9 In weighing up South Africa’s international law obligations with regard to ending

impunity for grave breaches of international humanitarian and international

human rights law, some of which may enjoy jus cogens status, and its

obligations emanating from immunity arrangements (which do not enjoy a

similar status) that may protect fugitives from justice, it is important to take note

of the following judgement by Lord Millet in the well-known Pinochet case:38

International law cannot be supposed to have established a crime having the character

of a jus cogens and at the same time to have provided an immunity which is co-

extensive with the obligations it seeks to impose.

3.2. South Africa’s Relationship with the ICC and the Constitutional

Framework

3.2.1. South Africa played a pivotal role in the negotiation and establishment of the

ICC, and was one of the first African states to sign and ratify the Rome

Statute.39 South Africa, when it became a member state of this treaty,

purported that it supported the purpose of the ICC to “put an end to impunity

for the perpetrators”40 of “the most serious crimes of international concern”,41

namely genocide,42 crimes against humanity,43 war crimes,44 and the crime of

aggression.45 South Africa further pledged that it would “contribute to the

prevention of such crimes”,46 and take steps to ensure its “effective

prosecution”,47 as part of providing a legal remedy to the “millions of children,

37 A Cassese “The Character of the Violated Obligation” in J Crawford, A Pellet, S Olleson (Eds), and K Parlett (Assistant Editor) The Law of International Responsibility (2010) at 417 – 418. 38 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no 3) 119 ILR 136 (1999) at 232. 39 South Africa signed the Rome Statute of the International Criminal Court (“Rome Statute”) on 17 July 1998, and deposited its instrument of ratification on 27 November 2000. See in this regard: https://asp.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/south%20africa.aspx (visited on 2 March 2017). 40 Preamble of the Rome Statute. 41 Preamble and Articles 1 and 5(1) of the Rome Statute. 42 Article 6 of the Rome Statute. 43 Article 7 of the Rome Statute. 44 Article 8 of the Rome Statute. 45 Article 8 bis of the Rome Statute. 46 Preamble of the Rome Statute. 47 Preamble of the Rome Statute.

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women and men (who) have been victims of unimaginable atrocities”48 in the

last century.

3.2.2. As required by the Rome Statute,49 South Africa promulgated the ICC Act to

give effect to its obligations under international law.

3.2.3. South Africa is respected and celebrated worldwide for its constitutional

commitment to the fundamental human rights guaranteed in the Bill of Rights,50

particularly after being liberated from decades of racial discrimination under

apartheid rule.51 International crimes fundamentally disrespect and negate the

founding values of the South African Constitution (human dignity, equality and

freedom) enshrined in section 1 of the Constitution as well as many of the rights

contained in the South African Bill of Rights.

3.2.4. Indeed, South Africa is required in terms of section 7(2) of its Constitution to

‘respect, protect, promote and fulfil the rights in the Bill of Rights’. One

important feature of realising these duties and, particularly, promoting human

rights is to take a strong stance against behaviour that constitutes international

crimes and to take active steps to act against impunity for such behaviour.

Withdrawing from the ICC and repealing the ICC Act goes against the state’s

express duty to advance fundamental rights. Indeed, it represents a

retrogressive measure that takes a backward step in relation to the state’s

commitment to advance and protect fundamental rights. The Bill of Rights

ultimately requires that the rights contained therein are continuously advanced

and improved: retrogressive measures such as the ICC Act, are thus not in

conformity with the general obligations of the state in relation to fundamental

rights and thus are unconstitutional.

3.2.5. The intention to withdraw from the Rome Statute of the ICC is also an

especially serious blow to South Africa’s reputation as one of the foremost

guardians of human rights not only in Africa, but in the international community

as a whole. Indeed, the preamble of the South African Constitution expresses

its desire “to take its rightful place as a sovereign state in the family of nations”.

By repealing legislation that gives effect to jus cogens and erga omnes

48 Preamble of the Rome Statute. 49 Article 1 of the Rome Statute. 50 Section 7(2) of the Constitution. 51 Interestingly enough, Article 7(1)(j) of the Rome Statute declares the “crime of apartheid” a crime against humanity.

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obligations in international law, South Africa is effectively undermining its

position within the international community and denying its foundational

international obligations.

3.2.6. Thus, South Africa has to consider strongly the substantive reasons why it

seeks seriously to undermine its commitment to jus cogens norms and erga

omnes obligations before a final decision is made to withdraw from the Rome

Statute. The international responsibilities emanating from the need to prevent

and prosecute international crimes are specifically “designed to protect the

common interests of states and basic moral values”,52 and ultimately, and

perhaps most importantly, to provide a legal remedy for the victims of

international crimes. These principles are deeply connected to the

foundational values, principles and rights contained in the Constitution.

Consequently, the repeal of the ICC Act and withdrawal from the ICC is

inconsistent with deep features of the South African Constitution itself.

4. CONCLUSION

4.1. In conclusion, it is the submission of SAIFAC and SARCIL that the Bill should

not be passed for the following reasons:

4.1.1. The Bill is stained with irrationality, which breaches the rule-of-law principle in

the Constitution in that government purports to –

• give effect to its international-law obligation to provide heads of state with

immunity, while that obligation is not unlimited – immunity in international

law is justifiably limited by the provisions of the Rome Statute of the ICC and

by South Africa’s own ICC Act and was contemplated by parliament when

initially passing the ICC Act;

• secure peace on the African continent but cannot show how South Africa’s

withdrawal from the ICC, effectively sanctioning genocide, crimes against

humanity, war crimes, and crimes of aggression without providing victims

with alternative remedies, would aid in promoting peace; and

52 NB Jørgensen The Responsibility of States for International Crimes (2003) at 96.

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• remain committed to the fight against impunity but nevertheless provides no

alternative mechanism internally and externally for facilitating the fight after

withdrawal from the ICC.

4.1.2. The Bill is furthermore unconstitutional because it is a miscarried attempt at

circumventing erga omnes obligations and jus cogens norms. In so doing, the

Bill desecrates the foundational values, principles, general state obligations in

relation to fundamental rights and constitutional spirit of the Republic of South

Africa which –

• per the Preamble of the Constitution, envisages a “democratic South Africa”

that can “take its rightful place as a sovereign state in the family of nations”;

and

• per section 7(2) of the Constitution, obliges the state to “respect, protect,

promote and fulfil the rights in the Bill of Rights”.