A Gap opens for South Africa to do Right on the ICC
The South African government deposited on 7 March 2017 with the UN Secretary General a document that is as embarrassing as it is telling. The document is headed: “South Africa: Withdrawal of Notification of Withdrawal”. It comes on the back of a successful challenge in the High Court to the government’s unilateral and surprise lodging last year in October of its notice to withdraw from the International Criminal Court (ICC). An urgently convened Full Bench of three senior judges ruled on 22 February 2017 that the move by South Africa was “unconstitutional and invalid”. Pretoria has deposited its notice withdrawing its notice of withdrawal in order to adhere to the judgment.
This embarrassing reversal might have been avoided if the government had taken the time to follow the correct legal processes. The arguments and papers before the High Court revealed that South Africa’s executive made out no case whatsoever for any urgent need to remove the country from the ICC, and that South Africa was in fact involved midway in various consultative processes with the ICC to deal with its concerns. Those concerns included its arguments for leaving the ICC. Its primary contention is that South Africa is caught in a bind. On the one hand, it must observe diplomatic immunity for heads of state, as per international customary law backed up African Union pressure. Yet its membership of the ICC required it to arrest presidents like Sudan’s Al-Bashir, wanted for genocide, crimes against humanity, and war crimes. To escape this bind, South Africa opted out. It also raised the risible argument that there was no cause for concern for African victims of such crimes, since the African Court of Human and Peoples Rights would be recast to prosecute international crimes as an African alternative to the ICC – a claim that is undermined somewhat by the fact that not one of the 15 ratifications required for such recasting has been obtained (South Africa has not even signed the amendment protocol let alone ratified it), and heads of state and other senior African officials would have iron-clad immunity from prosecution before the recast African Court.
These and other arguments in support of its withdrawal have been subjected to withering criticism by many, including most recently a number of retired Justices of South Africa’s Constitutional Court.
Of course the implications of a withdrawal by South Africa have sent shockwaves, inducing fears that its move will threaten the existence of the Court itself in Africa. That consequence for African victims of the world’s worst crimes would be massive, recalling that there is scant chance of them receiving justice before domestic courts.
But most importantly, South Africa’s decision to remove itself from the ICC means a squandered opportunity to show leadership and to use its influence within the Court to help assuage the concerns about the work of the ICC. There is a real debate about the effect of immunities within the ICC and the unhealthy relationship of the ICC with the Security Council. A better solution for South Africa would be to remain a constructive member of the Court, working to improve the ICC from within.
There are several options available, which I have written about elsewhere, and they are not mutually exclusive.
The first is to engage with other States Parties to reform referral processes by which the ICC investigates cases. In Africa alone, 34 countries have ratified the Rome Statute; if coordinated, this would represent the most powerful bloc within the treaty.
The second is to push for a political resolution to the question of whether serving heads of state should have immunity. Since the Bashir arrest debacle, South Africa has led a working group at the ICC’s Assembly of States Parties on this very matter. South Africa is – now again – well positioned to streamline the ICC’s consultation process on the matter.
The third is to push for more clarity from the UN Security Council when it refers situations to the ICC implicating a Head of State (like Bashir). The Council ought to express itself unambiguously about the removal of immunities and the obligations regarding cooperation. It also needs to improve its consultation process with African states and the African Union in relation to ICC matters. South Africa is ideally suited to contribute to this process of reform.
The fourth is to continue pushing for UN Security Council reform. The ICC is undermined by the Security Council’s reluctance to refer cases involving major powers, for example in Syria. This process is difficult, but would be even harder if South Africa were not involved.
This moment in time allows the South African government to put the imbroglio of its ill-fated withdrawal in the past. The future of the Court is at stake, and there is an opportunity for the government to continue engaging constructively to improve the ICC. Whether the Zuma administration has the foresight or insight to do so is another question entirely.