A SIGN OF THE TIMES: SOUTH AFRICA’S POLITICO-LEGAL RETROGRESSION AS ILLUSTRATED THROUGH THE INTENTION TO WITHDRAW FROM THE ROME STATUTE

Abstract

Sending the unequivocal message that perpetrators of crimes against humanity, genocide and war crimes would be prosecuted, South Africa was an active participant in the negotiations towards adopting the Rome Statute establishing the International Criminal Court (ICC). Indeed, South Africa was the 23rd state to ratify the treaty and domesticated it in the form of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. Pursuant to the obligations undertaken by South Africa, it was incumbent on the state to arrest and surrender to the ICC the President of Sudan, Omar Al Bashir in June 2015, on the strength of two international arrest warrants issued against him by the ICC, when he attended the African Union Summit in South Africa. Instead, not only was Al Bashir’s sudden departure from South Africa facilitated by South African officials in contempt of a court order prohibiting same, but South Africa also deposited its instrument of withdrawal from the Rome Statute with the United Nations Secretary General soon afterwards. It is against this contextual background that South Africa’s failure to comply with the rule of law is assessed, with the evidence indicating that political considerations often outweigh legal obligations.