S.Africa to consider withdrawing from ICC: minister

Minister in the Presidency Jeff Radebe indicated on Thursday that South Africa may consider withdrawing from the International Criminal Court (ICC).

The move would be taken as a last resort, the minister said at a press briefing in Cape Town after a fortnightly cabinet meeting.

South Africa, he said, was reviewing its participation in the ICC.

South Africa is a signatory to the Rome Statute which created the ICC. But the country defied an ICC order to arrest Sudanese President Omar al-Bashir when he was attending the 25th African Union (AU) Summit early this month in Johannesburg.

The High Court in Pretoria ruled on Wednesday that the South African government violated the law by ignoring a court order preventing al-Bashir from leaving the country during the AU summit.

All indications were that the South African government had not complied with a Pretoria High Court order granted on June 14, compelling authorities to keep al-Bashir in the country, Judge President Dunstan Mlambo said.

The court also ruled that al-Bashir should be detained under the ICC indictment on war crime charges.

Al-Bashir left South Africa half way of the AU summit on June 14, defying the order requesting him to remain in South Africa pending an application by the Southern African Litigation Center for his arrest.

Mlambo invited the National Director of Public Prosecutions, Shaun Abrahams to consider whether criminal proceedings were appropriate for officials who allowed al-Bashir to leave the country despite the court order.

"A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations and fails to abide by court orders.

"A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or a state official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues," Mlambo said.

But Radebe denied that the government violated the law.

"South Africa believes in the rule of law," he said. "We will always observe the rule of law."

The government, he added, has no discretion over when to comply with court orders.

"We must comply with court orders," Radebe noted.

The S.African government is expected to present an affidavit to the court on why it let al-Bashir leave the country.

Al-Bashir was granted immunity by the S.African government during the AU summit on June 14-15.

Radebe said the government noted contradictions in various articles in the Rome Statute of the ICC on indemnity for Heads of State.

He said Article 27 provides for any person, irrespective of official status, to be held accountable for crimes they are alleged to have committed.

"Article 98(2) is significant and unambiguous. It clearly states that the ICC may not request the surrender of a person by the requested State, if that would result in the requested state breaching its international obligations, unless the ICC itself can first obtain the cooperation of the sending State," Radebe said.

He said South Africa's international obligations arise from its membership with the AU which does not allow the arrest of any sitting head of state in Africa.

He said South Africa would be preparing a report for the ICC's Assembly of States Parties later this year. Endi