South Africa’s decision to leave ICC a “blow to victims” of international crimes

Michael Masutha

Michael Masutha

South Africa’s announcement Friday that it is leaving the ICC surprised many, raising questions about its legality and concerns for the future of a court that counted South African dissident-turned-president Nelson Mandela as a key advocate.

The United Nations confirmed receipt Friday of South Africa’s withdrawal from the ICC, effective October 19, 2017. The withdrawal makes South Africa the first state to quit the 1998 Rome Statute that established the court. The South African announcement follows a similar decision by Burundi’s leader earlier this week, while Kenya, Uganda and Namibia have been mooting similar moves. The 124-member ICC, based in The Hague, is the world’s first legal body with permanent international jurisdiction to prosecute genocide, crimes against humanity and war crimes.

“It’s a blow to the victims of international criminal injustice,” Allan Ngari, a researcher at the Institute for Security Studies, told FRANCE 24 of Pretoria’s decision. Over the phone from Johannesburg, Ngari cited concerns that the decision “may spur a domino effect” on the African continent.

“The hypocrisy, or the irony, is this executive, a government led by the African National Congress, had been struggling for years against Apartheid, an international crime, so for it to withdraw… really casts a long shadow on its history, and its good history, of championing human rights,” Ngari said.

South Africa’s decision follows a 2015 dispute with the ICC after Sudanese President Omar Hassan al-Bashir, who is accused of genocide and war crimes, was allowed to visit the country with impunity. Bashir travelled to Johannesburg for an African Union summit in June 2015. The ICC ordered that he be held until the end of a hearing on whether he should be detained under a global arrest warrant, but South Africa allowed Bashir to leave the country.

South Africa’s High Court ruled Bashir should have been arrested to face ICC charges since Pretoria, as a signatory to the Rome Statute, was obliged to implement arrest warrants. Jacob Zuma’s government appealed to the Supreme Court in March of this year and lost, with the Supreme Court accusing the government of “disgraceful conduct”. Pretoria made a last-ditch appeal to the Constitutional Court to overturn the ruling with that decision due next month, but has now said it will end its legal battle after Friday’s announcement that South Africa would quit the ICC altogether.

On Friday, South African justice minister Michael Masutha told reporters the Rome Statute was “in conflict and inconsistent with” South Africa’s diplomatic immunity law. He told reporters in Pretoria that the government would draft a bill to repeal its adoption of the Rome Statute to preserve the country’s ability to conduct active diplomatic relations.

Other ICC targets

South Africa is not the only state whose ire the ICC has raised in its pursuit of African heads of state.

In January, the African Union backed Kenyan President Uhuru Kenyatta’s pitch for member-state officials to “develop a road map” for possible withdrawal from the Rome Statute, although final decisions to leave the ICC must ultimately be made by signatories individually. The ICC had previously pursued Kenyatta for his alleged role in political violence after Kenya’s 2007 presidential election. But the case collapsed amid what the ICC prosecutor said were threats to witnesses, bribery and a lack of cooperation by the Kenyan government.

Burundi President Pierre Nkurunziza signed a bill to quit the ICC on October 18. The Hague-based court had previously said it would investigate the political violence in Burundi that followed Nkurunziza’s controversial decision last year to seek a third term in office.

Richard Goldstone, a South African former judge and chief UN prosecutor for Yugoslavia and Rwanda, was also quick to point out the irony and express concerns for the future. “South Africa, together with other so-called ‘like-minded nations’ played an important role in encouraging other Southern African states to rectify the Rome Statute. President Nelson Mandela, together with his administration, was a firm supporter of the ICC and more generally on furthering the mechanisms of international justice,” Goldstone told online forum Just Security in a statement Friday. “This is an unfortunate development that detracts from their inspiring legacy. It will also encourage those states, and specially in Africa, whose leaders have good reason to fear the International Criminal Court, to follow this most unfortunate example.”

Indeed, critics of the court have accused it of harbouring post-colonial bias in its historical pursuit of African suspects to the ostensible exclusion of others. Nine of the 10 ICC probes since 2002 have looked into African countries, while only African suspects have been charged in the six cases that are ongoing or imminent.

But some observers suggest the post-colonialism charge is a convenient narrative for critics when the balance sheet deserves another look. Ngari calls it “a misperception that has to be cleared up”. He notes that of the nine African situations, six were referred to by African states themselves, including Central African Republic twice. “So that should correct the narrative that, no, the ICC is not targeting Africa,” Ngari said.

Carrie Comer, Permanent Representative to the ICC for the International Federation of Human Rights (FIDH), told France 24 by phone from The Hague that the “really flawed” charge that the ICC gangs up on Africa is also unfair when one looks at the court’s “worldwide” agenda for the years to come. She cites preliminary investigations opened in South America (Colombia), the Middle East (Palestine, Iraq), and Europe (Ukraine).

Critics are now left to hope Pretoria’s move will be overturned after the decision was made without parliamentary or public consultation.

The Democratic Alliance, South Africa’s main opposition party, launched an immediate legal appeal, describing the withdrawal as “irrational and procedurally flawed”.

“The decision… shows the depth of impunity and disregard for the rule of law within the ANC,” the opposition party said.

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes,” Dewa Mavhinga, Human Rights Watch’s senior researcher for Zimbabwe and Southern Africa, tweeted Friday. “Questions remain about whether the government even acted in line with its own laws for leaving the court. It’s important for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored.”

Ngari, whose Pretoria-based Institute for Security Studies advocates “constructive dialogue”, cites hardline positions on both sides. He said the ICC, for its part, “should have been more willing to understand the consultations with South Africa as political discussions rather than a strictly legal procedure initiated by an application by the Prosecutor and a decision by the Pre-Trial Chamber stating that South Africa was obligated to arrest President Bashir should he attend the African Union Summit”.

After the dust settles, in any case, observers say it is clear who loses out. FIDH’s Comer calls South Africa’s decision “a slap in the face to victims”. “It’s playing politics with justice and reprehensible,” she says.

“There is a saying in Africa, ‘When two bulls fight, it’s the grass that gets hurt the most’,” says Ngari. The researcher says one bull is the African Union and African states, while the other is the ICC and related structures including the UN Security Council. “And the grass is the victims of international crimes in Africa.”