Leaving the ICC would have had 'catastrophic international consequences' - Zak Yacoob

Johannesburg - Retired Constitutional Court Judge Zak Yacoob has said that leaving the ICC would have had "catastrophic international consequences".

Yacoob was briefing the media in Rosebank on Wednesday morning on submissions made by retired judges to Parliament's Portfolio Committee on Justice and Correctional Services on the government's decision to withdraw from the International Criminal Court.

On Tuesday night, SA revoked its notice of withdrawal from the ICC, after the High Court ordered President Jacob Zuma, International Relations and Co-operation Minister Maite Nkoana-Mashabane and Justice Minister Michael Masutha to revoke the notice of withdrawal.

Yacoob said the idea that powerful countries, which were members of the UN Security Council, could do as they pleased without prosecution was false, and that it did not constitute a complete reason for leaving the ICC.

Included in the recommendations made to the portfolio committee was that SA should engage with other African countries to put in place legislation to empower domestic courts with the ability to try genocide, war crimes and crimes against humanity.

In October 2016, Masutha announced that SA had initiated the process of withdrawing from the ICC.

The decision had come after several court judgments that the government had violated the law by not arresting Sudanese President Omar al-Bashir during his visit to SA in June 2015.

In 2016, the Southern African Litigation Centre (SALC) took the government to court after they failed to arrest and hand over Al-Bashir, even though he had been indicted by the ICC under the Rome Statute for war crimes and genocide.

'Court of last resort'

Africa Director of the International Committee of Justice (ICJ) Arnold Tsunga, who was also at the briefing, said that, although reform was essential in the ICC, it could not be a basis for leaving SA without a viable option for tackling impunity.

"Currently, we don't have a legal or institutional framework with which Africa can effectively tackle impunity for the hundreds and thousands of people who get killed, and women who get raped," said Tsunga.

Tsunga explained that, although the ICC was not perfect, there was currently no alternative. Withdrawing from the ICC would send a message that we did not care about impunity, he said.

He called on political leadership to also consider legal leadership in tackling impunity.

"Without an effective, legal domestic system to protect civilians, you need the International Criminal Court as a court of last resort," he said.

Tsunga admitted that the ICC had failed to extend itself beyond Africa, although big global economic players had also been involved in violations of human rights.

"A majority of the African situations that have been bought to the ICC were referred by the African heads of state, and therefore there is no question that ICC was targeting only African heads of state," he said.

Kaajal Ramjathan-Keogh, Executive Director of SALC, welcomed the notice, but said: "What we are concerned with now is that South Africa is deliberating on the ICC repeal bill before Parliament has had an opportunity to take a decision on whether or not to leave the criminal court."

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