The High Court in Pretoria on Tuesday reserved judgment in the Democratic Alliance’s application to have South Africa’s withdrawal from the Rome Statute of the International Criminal Court halted.
After hearing lengthy arguments for the second consecutive day, deputy judge president Phineas Mojapelo said the full bench of three judges presiding over the matter would now ponder the case.
“We cannot shoot from the hip,” said Mojapelo before adjourning the court.
Earlier, the court heard argument that the DA’s court application was premature.
“We say that it is premature, and I will give reasons at the outset why we contend that it’s premature. Logic is that if it’s premature, and one of the several reasons is that it is before parliament. It is being considered by parliament,” said Advocate Jeremy Gauntlett for President Jacob Zuma and his ministers of international relations and justice.
“There is a motion seeking approval of the withdrawal from [the] Rome [Statute]. There is a continuing diplomatic process being conducted with the ICC itself and with ASP [the Assembly of State Parties].”
Gauntlett said the relief sought by the DA, joined by other parties, including the Helen Suzman Foundation, the Southern African Litigation Centre and the Peace and Justice Initiative, was unprecedented.
“This is not bread and butter stuff. I will be corrected if I’m wrong, but this is the first instance that I know of where a formal decision of the executive in its highest form, Cabinet, is sought to be declared invalid,” said Gauntlett.
“We are not saying this is a no-go area for the court. There are no no-go areas. We don’t have the political questions doctrine in South Africa, but what we do have is the separation of powers.”
He said previous assertions made to the court, stating that South Africa was pulling out of the ICC for the sole reason of protecting Sudanese President Omar al-Bashir, who is wanted for war crimes, was a half-truth.
“It is said that it’s only President Omar al-Bashir who is at stake. No, it’s not. The ICC had a warrant out against President Uhuru Kenyatta [of Kenya]. We also know that there will be other heads of state who will be subjected to these proceedings,” said Gauntlett.
He said instead of focusing on the prosecutions of alleged perpetrators on the continent, South Africa was focusing on brokering and maintenance of peace.
“We have peacekeeping forces in the [Democratic Republic of Congo] DRC. We also have them in the Central African Republic. They are wracked by allegations of genocide, torture and rape,” he said.
“The point is simply that South Africa has adopted a particular stance before the ICC to say don’t make perfection the enemy of the good. We’re asking that you help us to prioritise the peace over the prosecution.”
South Africa believed it was unfairly treated by the ICC when it consulted the court over Bashir’s visit the country in June last year.
Pretoria asked the ICC to exempt it from its requirement to arrest Bashir because, it said, he should enjoy immunity as a sitting head of state attending an African Union summit. But the ICC rejected this request and demanded that South Africa arrest Bashir, which it did not.
South Africa has complained that the ICC did not give it a fair hearing and that there was confusion within the court itself about the obligations of member states to arrest sitting heads of state of countries that are not members of the ICC – such as Bashir.
In October, Justice Minister Michael Masutha announced that the South African government had informed the United Nations of its intention to withdraw from the ICC.
“Written notice to withdraw from the Rome Statute of the International Criminal Court has been submitted to the secretary-general of the United Nations in accordance with article 127(1) of the Rome Statute of the ICC. The withdrawal will take effect one year after the secretary-general has received the notification,” Masutha told a media briefing in Pretoria at the time.
The withdrawal of South Africa from a court that it helped found is due to come into effect from October 19, 2017.
The South African government was found by the Supreme Court of Appeal in Bloemfontein to have failed to uphold the law by not arresting Bashir when he was in the country Africa last year.