On October 19 2016, South Africa formally began the process to withdraw from the Rome Statute creating the International Criminal Court. The instrument of withdrawal signed by the minister of International Relations and Cooperation, Maite Nkoana-Mashabane, was submitted to the Secretariat of the United Nations following a decision by the South African cabinet. According to the Minister of Justice and Constitutional Development, the obligations of South Africa under the Implementation of the Rome Statute of the ICC Act are ‘incompatible’ with its obligations under the Diplomatic Immunities and Privileges Act as was held in the Supreme Court of Appeal in the Omar al Bashir case. It is as a result of this alleged conflict that the cabinet made the decision to withdraw from the Rome Statute. The Supreme Court of Appeal previously reached the decision that the obligations under the Rome Statute should take precedence over the international law norm of diplomatic immunities. The government has challenged this decision at the Constitutional Court and the case was set to be heard in November, the minister however revealed that the appeal will be withdrawn. The opposition party Democratic Alliance (DA) termed the action regressive and contrary to the duty of the State to ‘respect, protect, promote and fulfil’ the rights contained in the Bill of Rights.
Since the intention to withdraw from the ICC was announced, various media, scholars and blogs have debated the justification behind the withdrawal and its repercussions on the ICC and international criminal justice. On the other hand, very little has been said about the recent self-referral of Gabon to the ICC. It appears that the coincidental reminder of Gabon’s self-referral—that the ICC’s alleged ‘targeting of Africa’ was mainly the result of African states’ referral of their own situations to the ICC—was not taken note of. It also appears that the constantly evolving nature of international criminal law in particular as well as the relative novelty of the Court and its practices was ignored in many of the comments given.
International criminal justice has been developing for centuries. The ICC, though one of the greatest achievements in light of the fight against impunity, has experienced many setbacks. The al-Bashir case, the Kenyatta et al and the 2009 Palestine decision, among others, have given rise to much controversy. One could raise various instances on what and how situations and cases could have been better selected, prioritized and handled within the Court. However, considering its overarching goal of providing redress to the victims of gross human rights violations and its watchdog function in the absence of domestic and regional redresses, the antagonistic stance of various critics of the Court is astounding. Despite the agenda and discourse advocated, the fact of the matter is that, as a court of last resort, it is an institution looking after the need for justice of the helpless many. Leaving aside some African leaders’ need to shield themselves from prosecution and the technicality of the law, the issue that comes to mind is whether (as claimed by the South African minister), membership to the Rome Statute affects the establishment of peace. If so, what does leaving the institution achieve?
South Africa is one of the African countries that played a leading role in the development of the ICC and also the first African country to have passed domestic legislation implementing the Rome Statute. The reaction of the President of the Assembly of States Parties to the Rome Statute is that the action of South Africa is a ‘disturbing signal that could open the way for other states to withdraw from the ICC which would weaken the only international institution dealing with the most serious crimes of international concern’. This opinion is shared by many who fear that South Africa’s move would create a domino effect resulting in more African states withdrawing from the ICC. At the moment, Namibia and consequently Gambia have also announced their intention to withdraw. If more states follow suit, this would be unsettling to many African people who would be left with no international option to hold perpetrators at the upper echelon of power responsible.
It is no secret that in recent years, the African Union has become critical of the ICC and its operations. Particularly with regards to the provisions of the Article 27 of the Rome Statute on the irrelevance of official capacity, which directly erodes the principle of diplomatic immunity for heads of government and senior government officials including those non-member states before the Court through Security Council referrals. Even though not all AU member States are members of the ICC, Africa constitutes the largest regional bloc in the Court’s membership. Currently, the majority of ongoing cases and investigations are on the African continent, which one may expect as Africa is the largest regional bloc in the Court. While the number of investigations on Africa cannot, on its own, be an indication of bias, it has been used by the anti-ICC crusaders in their analysis. It is important to note however that not all AU member states are anti-ICC as countries like Nigeria, Ghana, Sierra-Leone, Tunisia, Senegal and Malawi have indicated their support for the Court and Gabon has recently made a self-referral. The government of Botswana has also stated that the withdrawal of South Africa is ‘regrettable’. It further ‘reaffirmed its membership’ of the Rome Statute and ‘reiterated its support for a strong international criminal justice system through the ICC’.
South Africa’s notice of withdrawal was made by the executive branch of the South African government without consulting the parliament and its people. Although some voices doubt the constitutionality of the move, this does not affect the validity and the effectiveness of the notice of withdrawal. With regards to the stated justification for the withdrawal on the incompatibility of South Africa’s obligations to the peaceful resolution of conflicts in Africa, though not significantly developed, the ICC has means for improvement through Article 53 of the Statute, namely ‘interests of justice’. The latter allows the Prosecutor to suspend investigations when an intervention by the Court jeopardizes peace talks. Although the Prosecutor needs to make more use of this ‘criterion’ in her decision to proceed to investigations, South Africa’s notice for withdrawal mainly based on the ‘incompatible to peace settlements’ claim makes the notice drastic and abrupt .
The 2014 Malabo Protocol which confers a criminal jurisdiction on the African Court has been touted as the African alternative to the ICC. However, it has so far not been ratified by any country and it requires 15 ratifications to come into effect. One may hope the African Court will come into existence as an African solution to an African problem had it not been for Article 46 (A) bis of the Protocol which makes those in power immune from prosecution. As much as we would like the African Court to become a reality despite its flaws, we would also like to see the ICC address its limitations and subsist as a court of last resort.
The ICC is a permanent court that will, similar to any other institution see its heydays and doomsdays. The withdrawal of South Africa or any African state that may follow may not be one of its peaks but it would not be the end of the ICC. It however calls in question the credibility and reputation of those state agents who are withdrawing. What is yet cynical is the withdrawing states will still be open to the undemocratic Security Council referrals that in the first place contributed to the Africa vs. ICC debate. Conversely, withdrawing states do not have a duty to cooperate with the Court once the withdrawal takes effect. However, if those leaders do not want to be ‘targeted’ by the Court, their first line of defense should be desisting from committing gross human right violations.
Whether or not the action of South Africa will lead to a rush of withdrawal of African States from the ICC remains to be seen. However, it is obvious that this is a regrettable decision and it does not portend well for the future of justice and the fight against impunity on the African continent.
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