International relations and co-operation minister Ronald Lamola has provided diplomatic immunity to officials of the International Criminal Court (ICC).
This is in terms of the Diplomatic Immunities and Privileges Act, which exempts diplomats or foreign officials from certain laws and taxes in South Africa.
While the government was not expecting an ICC delegation to visit, the provision was standard practice to ensure immunity was in place, said a highly placed source in the department.
The diplomatic immunity, which was gazetted in December, ensures ICC officials are immune from the criminal and civil jurisdiction of South African courts, including immunity from arrest, detention, or seizure of personal belongings and also exemption from immigration restrictions.
“Archives of the ICC, and all papers and documents in whatever form, and materials being sent to or from the ICC, held by the ICC or belonging to it, wherever located and by whomever held, shall be inviolable. The termination or absence of such inviolability shall not affect protective measures the ICC may order pursuant to the statute and the rules of procedure and evidence with regard to documents and materials made to use or be used by the ICC,” said the gazette notice.
Members of the ICC mission who enjoy the privileges, immunities and facilities referred to [in section 2 of the act] shall be provided by the ICC with a document certifying that they are performing functions for the ICC and specifying a time period for which their functions will last.
— Government Gazette
“Members of the ICC mission who enjoy the privileges, immunities and facilities referred to [in section 2 of the act] shall be provided by the ICC with a document certifying they are performing functions for the ICC and specifying a time period for which their functions will last.”
The invoking of diplomatic immunity follows the issuing of arrest warrants by the ICC for Israeli Prime Minister Benjamin Netanyahu, his former defence secretary Yoav Gallant and Hamas military leader Mohammed Deif, who was killed in an air raid on Gaza in July last year.
The warrants of arrest relate to the Israeli-Hamas conflict in Gaza.
The ICC, which was established in 2001, prosecutes individuals alleged to have committed crimes against humanity, war crimes, genocide and crimes of aggression. It is an independent international organisation and is governed by an international treaty, the Rome Statute.
As a signatory to the Rome Statute, South Africa is required to execute arrest warrants should Netanyahu or Gallant enter South African territory.
In October last year South Africa submitted a memorial to the International Court of Justice (ICJ) outlining evidence for its case of genocide against Israel. The government has not made the docket of evidence public but said previously it had submitted more than 500 pages of evidence of Israel’s genocidal intent against Palestinians in contravention of the UN Genocide Convention.
South Africa brought its case against Israel in December 2023, accusing it of committing genocide against Palestinians in Gaza. The ICJ, the judicial organ of the UN, ordered Israel to take action to prevent acts of genocide in its war against the armed Palestinian group Hamas.
In January last year the court imposed provisional measures on Israel and gave the country a month to report on steps completed to implement them.
The provisional measures included requiring Israel not to kill Palestinians, not to inflict bodily or mental harm and conditions of life calculated to bring about the physical destruction of the group in whole or in part and not to impose measures preventing birth within the group.
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