20 July 2009

SAHA critical of South Africa’s refusal to adhere to international obligations.

SAHA is amongst numerous South African NGO's and human rights activists objecting to South Africa's refusal to co-operate with ICC in their efforts to prosecute Omar Al Bashir, the Sudanese dictator. The following statement was issued on 15 July 2009:



On 3 July 2009 a meeting of African heads of state at the Assembly of the African Union (AU) decided to withhold cooperation from the International Criminal Court (ICC) in respect of the arrest and surrender of President Omar al-Bashir of The Sudan. President al-Bashir has been indicted by the ICC for war crimes and crimes against humanity allegedly committed in Darfur. The decision by the AU represents the most serious challenge to the struggle against impunity and lawlessness on the African continent. South Africa's President and Foreign Minister were present at meetings of the AU Assembly on 2 and 3 July 2009 when this decision was debated and approved. Neither the President nor the Foreign Minister is reported to have raised any objections to the decision. South Africa's endorsement of the declaration requires it to break its international treaty obligations and to defy its own law and Constitution.

South Africa played an important role in the establishment of the ICC and was one of the first countries to ratify the Court's enabling statute, the Rome Statute, and incorporate it into domestic law (The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002). That statute passed by Parliament requires South Africa to execute the ICC's warrant of arrest should President al-Bashir enter South African territory. The South African Constitution is equally clear on the obligations of the state. Where an international agreement or treaty has been enacted into law by national legislation it is binding law.

As a State Party to the Rome Statute, South Africa is obliged to cooperate fully with the ICC in the arrest and transfer of President al-Bashir to the ICC, whether or not it agrees with the indictment. Should the South African government persist with its support for the decision it will do so in open defiance of its own Constitution and law.

The undersigned civil society organisations and individuals call upon President Jacob Zuma and the South African government to:

state unequivocally that South Africa will honour its treaty obligations under the Rome Statute to cooperate fully with the ICC;
respect and abide by the South African Constitution and the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
The other South African based organisations that have endorsed this statement are:

Aids Consortium
Centre for Applied Legal Studies (CALS)
Centre for Human Rights, Faculty of Law, Pretoria University
Centre for Justice and Crime Prevention (CJCP)
Centre for the Study of Violence & Reconciliation (CSVR)
Human Rights Institute of South Africa (HURISA)
International Centre for Transitional Justice (ICTJ)
International Crime in Africa Programme, Institute for Security Studies (ISS)
Khulumani Support Group
Legal Resources Centre (LRC)
Lawyers for Human Rights (LHR)
Open Society Foundation of SA (OSF-SA)
Open Society Initiative of Southern Africa (OSISA)
Sonke Gender Justice Network
The South African History Archive (SAHA)
South African Human Rights Commission (SAHRC)
Southern African Litigation Centre (SALC)
Individuals who have endorsed the statement are:

Adam Weiss, The AIRE Centre, London
Adetokunbo Mumuni, Executive Director, Socio-Economic Rights & Accountability Project (SERAP), Nigeria
Alan Dodson, former judge of the Land Claims Court
Alice Edwards, Lecturer in British Human Rights Law, University of Nottingham
Anyakwee Nsirimovu, Executive Director, Institute of Human Rights and Humanitarian Law (IHRHL), Nigeria
Biong Deng, Pretoria
Catherine Jenkins, Centre for Law and Conflict, SOAS, University of London
Christopher Whitcutt, Johannesburg
Colin Warbrick, Honorary Professor, Birimngham Law School, UK
David Borgstrom, Advocate, Cape Bar
David Simonsz, Advocate, Cape Bar
The Most Reverend Desmond Mpilo Tutu, former Chairperson of the TRC
Dumisa Buhle Ntsebeza SC, former Commissioner on the International Commission of Inquiry on Darfur appointed pursuant to UN Resolution 1564
Erin Cramer, London
Fadlah Adams, South African Human Rights Commission
Garth Abraham, Associate Professor of Law, University of the Witwatersrand
Geoffrey Robertson QC, Doughty Street Chambers, London
Glenn Goosen SC, Port Elizabeth Bar
Prof Hennie Strydom, University of Johannesburg and President, South African Branch of the International Law Association
Professor Hugh Corder, Professor of Public law, University of Cape Town
Ignatius Murorua, Namibia
Ivan Hare, Blackstone Chambers, London
Dr J Dippenaar, Walmer
Jem Sandford, London
Dr Jenny Kuper, London School of Economics
Jennifer McDermott, London
Jody Kollapen, Chairperson of the South African Human Rights Commission
Professor John Dugard, Centre for Human Rights, University of Pretoria
Jonathan Cooper, Barrister, Doughty Street Chambers, London
Professor Jon Klaaren, Wits Law School
Professor Kader Asmal, Former Minister and Honorary Professor at the University of Cape Town and University of Western Cape
Professor Karthy Govender, Commissioner of the South African Human Rights Commission and Professor of Law, University of KwaZulu Natal
Kerenza Millard, Johannebsurg
Kevin Boyle, Professor of Law, University of Essex, UK
Prof Kieran McEvoy, Institute of Criminology and Criminal Justice & Professor of Law and Transitional Justice School of Law, Queens University Belfast
Kiran Arora, UK
Lord Lester of Herne Hill QC, London
Madeleine Colvin, Human rights consultant, UK
Marelie Maritz, Pretoria
Max du Plessis, Associate Professor of Law, University of KwaZulu-Natal, Senior Research Associate, Institute for Security Studies
Mia Swart, Associate Professor, Wits Law School
Ndung'u Wainaina, Executive Director, International Center for Policy and Conflict, Nairobi
Professor Neville Botha, Pretoria
Osman Hummaida, Director, African Centre for Justice and Peace Studies
Pauline Dempers, National Coordinator, Breaking The Wall of Silence, Namibia
Peter Hodes SC, Cape Bar
Peter Leon, Johannesburg
Peter Roth QC, London
Richard Clayton QC, London
Richard Goldstone, former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda; former judge of the Constitutional Court of South Africa
Robert Latham, Doughty Street Chambers, London
Robyn Leslie, Kings College, London
Dr Sejal Parmar, Visiting Lecturer in International Human Rights Law, Queen Mary, University of London
Shaida Mahomed, Member of the Johannesburg Bar
Tshepo Madlingozi, Faculty of Law, University of Pretoria
Undule Mwakasungura, Centre for Human Rights & Rehabilitation, Malawi
Wayne Gray, Attorney, Port Elizabeth
Prof Werner Scholtz, Faculty of Law, NWU, Potchefstroom Campus
William Kerfoot, Attorney, Cape Town
Adv Wim Trengove SC, Johannesburg
Yasmin Sooka, former TRC Commissioner