SA leaving the ICC a long time coming
SOUTH Africa’s intention to withdraw from the International Criminal Court (ICC) may be surprising to some observers. This should not be the case. South Africa, to some extent, has shown its intention to leave the ICC for several years.
This process began when it joined the AU position that enjoins African countries not to co-operate with the ICC.
South Africa specifically indicated its position on the court when it permitted President Omar al-Bashir of Sudan to attend an AU Summit in South Africa in 2015.
In violation of South Africa’s international obligations and its laws, it allowed Bashir to depart the country even though it was obligated to arrest him and transfer him to the ICC.
South Africa assisted Bashir to leave the country despite a South African court order, issued while he was in the country, commanding him to remain until the challenge to South Africa’s non-arrest of him had been heard.
Bashir’s arrival at the AU Summit in South Africa on Saturday, June 13, 2015 therefore brought South Africa’s obligations and commitment to the ICC firmly into focus. As a state party to the Rome Statute of 1998, South Africa was obliged to co-operate with the ICC, which had previously issued an arrest warrant for Bashir.
South Africa has domesticated the Rome Treaty, and thus it applies in the country. South Africa’s relationship with the court has been further tested by the ICC’s determination to examine the country’s non-compliance on the Bashir case.
The government has also lost its appeals in the country on the decision that it had not complied with its international and domestic obligations not to arrest Bashir.
Bashir’s arrival in the country brought South Africa’s resolve to uphold international criminal justice directly into question. However, that should not have been the case as South Africa, for some years, has indicated that it is not committed to international justice.
It has not supported various processes, including attempts in various forums such as the Security Council, to protect people against massive human rights violations.
South Africa’s position on the ICC over the last few years needs to be seen in the context of its desire to be a major role player in Africa, the AU and in various international institutions, such as the UN.
The government of South Africa has often supported decisions to stop action being taken against violator states at the UN Security Council, at the Human Rights Council and elsewhere, even where gross human rights violations have occurred, such as in Zimbabwe, Myanmar/Burma, North Korea, Syria and elsewhere.
It went along with the decision to emasculate the SADC Tribunal, which had been playing a robust role in protecting the rights of individuals in the southern part of Africa. It has shown that it will side more often with Russia and China on human rights matters and this has been concretised by its membership in Brics.
South Africa taking the position of indicating its intention to withdraw from the ICC indicates its friendship and communal attitude towards other African states, and that its position in Brics dominates its foreign policy over its international law and its human rights obligations.
South Africa’s intention to withdraw, after Burundi’s Parliament voted to also do so this week, strikes a blow to international justice.
The establishment of the ICC has been an enormous step in the process to hold individuals accountable for international crimes.
South Africa signed and ratified the Rome Statute of the ICC in 1998. It enacted the Implementation of the Rome Statute of the ICC Act 27 of 2002, which became the law of the land on August 16, 2002.
The role of the ICC on the African continent is controversial. It has both its supporters and detractors. The court is no longer supported by a range of African countries, some of whom were major devotees in the past.
Many African countries, including South Africa, initially supported the ICC. However, the fact that the ICC only has African cases has given ammunition to those antithetical to its existence. In its 20042007 strategic plan, one of the five commitments the AU adopted was to ensure all countries ratified the Rome statute. Since then, there has been a reversal of that position and it has become very vocal about its opposition to the court.
The anti-ICC crescendo from the AU has increased of late, initially on the question of prosecuting the president of Sudan, but also concerning the case against the president and deputy president of Kenya.
While human rights were a major policy objective in the past, today they play a much lesser role. South Africa’s commitment to the AU and Brics has seen it play a role that tries to navigate between its foreign policy interests and its international obligations.
It seems, however, that South Africa’s need to win friends and influence others in Africa, and elsewhere, today trumps its international obligations.
South Africa’s intention to leave must also be seen in the context of the AU’s process to give the African Court on Justice and Human Rights criminal jurisdiction. Thus, there may be a range of African countries that signal their intention to leave the ICC and argue that it is not their obligation to international criminal justice that is motivating them to depart. However, the proposed criminal court in Africa will not be able to prosecute heads of government, thus the commitment to international justice by African countries can be questioned.
While South Africa is a democracy, sometimes it does not operate in a democratic fashion. The decision to leave the ICC has not been discussed in the country and not in its Parliament. In fact the first time there was notification of this intention was after the requisite communication had been lodged at the UN.
No intention to leave the ICC was made in the country until after the fact. Its secrecy again is not surprising, as many times South Africa has taken steps without debate or consultation even in the legislature on such foreign policy steps.
The government has often taken steps in regard to international justice and international human rights matters without public consultation or debate. It has done so knowing that the position it is taking will not always be supported or in line with its constitution.
What is clear is that South Africa is not simply able to leave the court. It has constitutional and domestic legal obligations in this regard. It will have to undo those if it can. However, its intention to leave will most certainly be litigated in the country.