Leav­ing ICC will not be easy

SA is putting in­flu­ence ahead of in­ter­na­tional obli­ga­tion

Weekend Argus (Saturday Edition) - - FRONT PAGE - JEREMY SARKIN

SOUTH Africa’s in­ten­tion to with­draw from the In­ter­na­tional Crim­i­nal Court (ICC) may have sur­prised some ob­servers but this should not be the case since the coun­try has to some ex­tent shown its in­ten­tion to leave the ICC for some years now.

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 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, the gov­ern­ment al­lowed al-Bashir to de­part, even though it was obliged to ar­rest him and trans­fer him to the ICC.

South Africa as­sisted al-Bashir to leave this coun­try de­spite a court or­der is­sued while the Su­danese leader was still here com­mand­ing him to re­main un­til a chal­lenge to South Africa’s fail­ure to ar­rest him had been heard.

Al-Bashir’s ar­rival at the AU Sum­mit in South Africa on Satur­day June 13, 2015, there­fore put South Africa’s obli­ga­tions and com­mit­ment to the ICC firmly in fo­cus. South Africa has do­mes­ti­cated the Rome Treaty and thus it ap­plies in the coun­try.

As a state party to the Rome Statute of 1998, South Africa was obliged to co-op­er­ate with the ICC, which had is­sued an ar­rest war­rant for al-Bashir.

South Africa’s re­la­tion­ship with the court has been fur­ther tested by the ICC’s de­ter­mi­na­tion to ex­am­ine its non-com­pli­ance on the al-Bashir case.

The gov­ern­ment also lost ap­peals in the coun­try on the de­ci­sion that it had not com­plied with its in­ter­na­tional and do­mes­tic obli­ga­tions not to ar­rest al-Bashir.

The al-Bashir saga placed South Africa’s re­solve to up­hold in­ter­na­tional crim­i­nal jus­tice di­rectly into ques­tion. How­ever, that should not have been the case as South Africa has for some years in­di­cated it is not com­mit­ted to in­ter­na­tional jus­tice.

It has not sup­ported var­i­ous pro­cesses in­clud­ing at­tempts in var­i­ous fo­rums, in­clud­ing the UN Se­cu­rity Coun­cil, to pro­tect peo­ple against large-scale hu­man rights vi­o­la­tions.

South Africa’s po­si­tion on the ICC over the past few years needs to be seen in the con­text of its de­sire to be a ma­jor role player in Africa, the AU and 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 Se­cu­rity Coun­cil, at the Hu­man Rights Coun­cil and else­where, even where gross hu­man rights vi­o­la­tions have oc­curred, such as in Zim­babwe, Myan­mar, 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 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 in­di­cat­ing its in­ten­tion to with­draw from the ICC points to its friend­ship and com­mu­nal at­ti­tude to­wards other African states, and that its po­si­tion in Brics dom­i­nates its for­eign pol­icy over its in­ter­na­tional law and hu­man rights obli­ga­tions.

South Africa’s in­ten­tion to with­draw, af­ter Bu­rundi’s par­lia­ment voted to do so this week, strikes a blow to in­ter­na­tional jus­tice. The es­tab­lish­ment of the ICC was an enor­mous step for­ward 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 In­ter­na­tional Crim­i­nal Court 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 sup­port­ers and de­trac­tors. The court is no longer backed by a range of African coun­tries, some of which were ma­jor ad­vo­cates in the past. Many African coun­tries, in­clud­ing South Africa, ini­tially sup­ported the ICC. How­ever, the fact that the ICC only has African cases pro­vided am­mu­ni­tion to those an­ti­thet­i­cal to its ex­is­tence.

In its 2004-2007 strate­gic plan, one of the five com­mit­ments the AU adopted was to en­sure all coun­tries rat­i­fied the Rome Statute, but there has been a re­ver­sal of that po­si­tion and the AU has be­come vo­cal about its op­po­si­tion to the court. The anti-ICC crescendo from the AU has in­creased re­cently, ini­tially on the ques­tion of pros­e­cut­ing the pres­i­dent of Su­dan but also in con­nec­tion with the case against the pres­i­dent and deputy pres­i­dent of Kenya.

South Africa’s in­ter­na­tional role and its com­mit­ment to in­ter­na­tional jus­tice and hu­man rights have changed since the Man­dela pres­i­dency. While hu­man rights were a ma­jor pol­icy ob­jec­tive in the past, to­day it plays a much lessor role.

South Africa’s com­mit­ment to the AU and Brics has seen our coun­try play a role that tries to nav­i­gate be­tween for­eign pol­icy in­ter­ests and in­ter­na­tional obli­ga­tions. How­ever it seems 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. There may be a range of African coun­tries that sig­nal their in­ten­tion to leave the ICC. How­ever, the pro­posed crim­i­nal court in Africa will not be able to pros­e­cute heads of gov­ern­ment and this means the com­mit­ment to in­ter­na­tional jus­tice by African coun­tries is open to ques­tion.

While South Africa is a democ­racy, it some­times does not op­er­ate in a demo­cratic fash­ion. The de­ci­sion to leave the ICC has not been dis­cussed in the coun­try or its par­lia­ment. The first no­ti­fi­ca­tion of in­ten­tion to with­draw from the ICC was given af­ter the req­ui­site com­mu­ni­ca­tion had been lodged at the UN – af­ter the fact.

This se­crecy is not sur­pris­ing, as the South African gov­ern­ment has fre­quently taken steps with­out de­bate or con­sul­ta­tion – even in the leg­is­la­ture – on such for­eign pol­icy steps. It has done so know­ing the po­si­tion it has as­sumed would not nec­es­sar­ily have sup­port or be in line with the 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.

Sarkin is a pro­fes­sor in the law fac­ulty at Unisa.


A gen­eral view of court­room one at the new premises of the In­ter­na­tional Crim­i­nal Court in The Hague, Nether­lands.

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