Many were shocked by the news that South Africa is withdrawing from the International Criminal Court (ICC), but what exactly does it mean? The Daily Vox spoke to Kelly-Jo Bluen, Project Leader for International Justice at the Institute for Justice and Reconciliation, for the breakdown.
What is the ICC and what role does it play in international justice?
The ICC is the International Criminal Court, which has its seat in The Hague. It was set up in 2002 with a mandate to investigate and prosecute individuals for international crimes, including crimes against humanity, war crimes and genocide. It was founded through the Rome Statute – a treaty signed by all ICC member states.
Why is SA withdrawing from the ICC?
The immediate reason seems to be the ongoing legal and political issues around Sudanese President Omar al-Bashir’s visit to SA in June last year. His visit resulted in legal challenges against government (more on that later). Some feel that government would like to avoid any further legal action domestically related to the al-Bashir case which is why the government’s intention not to proceed with the appeal at the Constitutional Court was announced at the same press briefing as the withdrawal. The withdrawal from the ICC has no bearing on ongoing processes at the ICC related to South Africa.
This is against the backdrop of ongoing concern by South Africa with the Court. The reasons given for the withdrawal by the Minister of Justice, Michael Masutha at a press briefing on Friday – and in the instrument of withdrawal deposited with the UN Secretary General – focus on South Africa’s role in peace negotiations, which it believes conflicts with its obligations under the Rome Statute. South Africa has expressed reservations relating to certain provisions of the Rome Statute – most notably regarding consultations around immunity for sitting heads of state. It raised these concerns as an agenda item at the Assembly of States Parties to the Rome Statute last year. It has further frequently referenced the issues surrounding inequality in the international justice system and the relationship between the ICC and the UN Security Council.
But how did it get to this point?
When al-Bashir arrived in SA for the African Union Summit last year, calls were made for him to be arrested under an arrest warrant from the ICC. The ICC has charged al-Bashir for war crimes, genocide and crimes against humanity.
Government refused to arrest al-Bashir, arguing that there was a conflict of obligations between the obligations to the ICC and those to the African Union which provided for head of state immunity from arrest. This resulted in the South African Litigation Centre (SALC) obtaining an emergency high court order calling for al-Bashir’s arrest – but they were informed during the hearing that al-Bashir had already left the country hours earlier.
Government appealed the decision at the South African Court of Appeal (SCA) but also lost there. They then planned to appeal the SCA ruling at the Constitutional Court, but Minister Masutha on Friday stated that government would be withdrawing their appeal to the ConCourt.
This also follows a long history of AU statements either around withdrawals or non-cooperation from the ICC and South African expressions of discontent with the ICC. South Africa, along with several African states, has increasingly noted that it finds the inequality in the approach to international justice concerning. It further tabled a request for clarity on immunity and consultations related to conflicting immunity obligations at the Assembly of States Parties last year in The Hague.
Are these criticisms placed against the ICC’s bias in dealing with international justice matters founded? Does the ICC target African states and ignore Western atrocities?
Yes and no.
On the one hand, it’s absolutely true that the ICC has focused on Africa and to date has not instituted any prosecutions of Western actors, despite clear evidence of atrocious war crimes committed by Western states. There are a couple of preliminary examinations outside of Africa, but with the exception of Georgia, all of the current situations under investigation are in Africa.
This is like a vegan getting upset that a visitor refused to eat meat. https://t.co/Dv0BG0wHPy
— Elnathan John (@elnathan_john) October 22, 2016
Some of the situations under investigation were referred to the ICC by African states themselves, which on the one hand shows support for the Court, but on the other hand is sometimes a tool used by governments to weaken their oppposition.
It’s also important to recognise that many of these issues are not necessarily about the ICC, but reflect that the global system is a deeply unequal and privileges the global north at the expense of the global south. The ICC fits into this global system and depends on it to be able to carry out its work.
So this is in part a question of failed promises of universality and the idea of international justice that many had hoped the ICC would be able to provide, and in part a reflection of deeply unequal international power structures and the way in which the ICC fits into that.
Should we be worried about South Africa withdrawing from the ICC?
Yes, we should be for a number of reasons.
At the domestic level, this reflects a growing trend of our executive making decisions without accountability. While the legality of withdrawal as an executive decision is questionable, perhaps what is most concerning is that the withdrawal effectively undermines the Rome Statute Implementation Act – which is a piece of domestic legislation. Repeal of laws is a legislative function, meaning that it must go through parliament. While the submission of the instrument of withdrawal is separate from the domestic legislative process, the fact that the domestic act is designed to implement the Rome Statute implies that the executive has effectively nullified this act without it going through parliament.
On Monday, the The Democratic Alliance and others issued a Constitutional Court challenge to the instrument of withdrawal from the ICC, arguing that only parliament can withdraw from international agreement such as the Rome Statute and that government are acting in conflict with domestically binding statute law – the Rome Statute Implementation Act – which domesticates the provisions of the Rome Statute act within South Africa.
Another concern is that, currently, there is little else by way of legal mechanisms of justice for mass atrocity outside of the ICC. While there have been some processes across the continent prosecuting individuals for mass atrocity, most notably the recent trial of Hissène Habré at the Extraordinary African Chamber in Dakar, The African Court of Justice and Human Rights – envisaged as a merger between the African Court of Human and People’s Rights and the African Court of Justice – is not yet established, so the possibility for a continental mechanism for justice is not yet a reality. While there are surely concerns with international criminal justice, if our current malaise in South Africa can show us anything, it’s the dangers of privileging superficial peace over substantive justice.
So while the international justice system is undoubtedly flawed, the lack of regard to due process of this decision in light of the domestic processes, and the absence of an alternative, is worrying.
So it’s a complicated situation. On the one hand, there are serious concerns with global inequality and urgent action is required on this; on the other hand, more accountability is preferable, not less. If we’re seeking an international justice system to be legitimate, it must be truly international and all stakeholders need to commit to this.
The interview with Kelly-Jo Bluen has been edited for brevity and clarity.