Top official says it would be a sad day if SA pulled out of ICC
It would be a sad day and a retrogressive step if South Africa, one of the founding members of the International Criminal Court (ICC), now pulled out of the court, one of the court’s senior officials said here this week.
Phakiso Mochochoko, a Lesotho citizen who is director for jurisdiction, complementarity and cooperation at the ICC, said this in response to the ruling African National Congress’s recent decision to end South Africa’s membership of the controversial court which tries the gravest crimes such as war crimes, crimes against humanity and genocide.
The ANC decided this in the wake of the controversy which erupted when the South African government – even though it is an ICC member – failed to arrest Sudanese President Omar al-Bashir when he visited South Africa for an African Union (AU) summit in June.
The ICC is now deciding if the South African government should be referred to the UN Security Council for possible punitive action for not complying with an ICC request to apprehend Bashir and hand him over for trial here at the ICC.
Bashir is wanted for war crimes, crimes against humanity and genocide in Darfur.
Mochochoko was asked by visiting South African journalists for his view on South Africa’s possible withdrawal from the ICC.
He pointed out that it was entirely up to states to decide if they wanted to join the ICC – as South Africa did back in 2000 as a founder member when the court was being launched – or to pull out. But he also expressed what he emphasised was a personal view about a South African withdrawal.
“I think it would be a sad day. It would be a retrogressive step. South Africa, as a human rights defender, as a democracy.. it would really be saying that it tolerates impunity.
“And given the role that South Africa played in the formation of the ICC, and the progressive role it has now taken, for it to withdraw from this international instrument that protects the rights, and fights against impunity, it would just be retrogressive.”
Mochochoko explained too that if South Africa did decide to pull out of the ICC, it would take at least a year to complete the process and it would not affect the current dispute between Pretoria and the ICC over South Africa’s handling of the Bashir case.
The ICC has asked South Africa to give reasons for not arresting Bashir so it can decide if South Africa violated its obligations to the ICC which asked Pretoria on June 13 to arrest Bashir who had arrived in South Africa that day.
Mochochoko also strongly denied the accusation by the ANC and African governments that the ICC was targeting Africans because all its cases so far have been against African individuals.
He said the real issue for African leaders was about the indictment of leaders.
He said African governments had not complained when the ICC issued arrest warrants for militias of the Lords Resistance Army and from the Democratic Republic of Congo in 2006. It was only when the ICC issued an arrest warrant against Sudanese head of state Bashir in 2009, “that was when the Sudanese government unleashed all this venom against the ICC and spread that the ICC was targeting African leaders”.
And he noted that the African criticism against the indictment of Kenya’s Uhuru Kenyatta had only erupted after he had been elected president.
Meanwhile, the ICC has moved closer to launching its first official investigation of non-Africans. ICC communication chief Fadi El-Abdallah said that ICC Prosecutor Fatou Bensouda had asked the court’s Pre-Trial Chamber to open an investigation into the 2008 war in the central European state of Georgia when Russia intervened militarily in support of pro-Russian separatists.
Bensouda’s office is also conducting preliminary examinations into possible crimes in Afghanistan, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine.
But it recently took the next step in Georgia by asking the ICC judges to approve an official investigation.
Mochochoko also dismissed any suggestion that South Africa would be able to refer its dispute with the ICC to the International Court of Justice (ICJ) to resolve the issue.
South African official sources have suggested that the ICC cannot be both a player and referee in the dispute.
But Mochochoko said this would be impossible as the ICC and ICJ were two completely separate, equal and independent courts and the ICJ had no jurisdiction over the ICC.
He said the ICJ could only settle disputes between states and had no criminal jurisdiction. - ANA
(File photo: Getty Images)