Leaving ICC will not be easy
SA is putting influence ahead of international obligation
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.