The South African government has announced its intention to withdraw from the International Criminal Court (ICC). The announcement comes just over a week after Burundi said it would also start the process of withdrawing from the court.
The establishment of the court in 2002 was greeted enthusiastically by many African countries. But in the intervening 14 years, with most of the ICC’s investigations focusing on African countries, that initial enthusiasm has waned in many quarters.
A belief has developed among a vocal group within the African Union (AU) that the ICC has disproportionately focused on Africa. The detractors say the court ignores similar, if not worse, situations in other parts of the world. Some accuse it of “hunting Africans”.
South Africa’s withdrawal, in particular, raises new questions about the court’s ongoing relevance. It comes at a time when the ICC has made important advances by opening investigations outside of Africa and completing cases that further define what is not permissible during war.
South Africa and the ICC
The catalyst for the country’s withdrawal was Omar al-Bashir’s presence at an AU Summit in Johannesburg in 2015. The Sudanese president is wanted by the ICC on charges of genocide, war crimes and crimes against humanity. He was the first sitting head of state to be indicted.
As a signatory to the Rome Statute that governs the jurisdiction and functioning of the court, South Africa was obliged to arrest al-Bashir and extradite him to The Hague to face trial.
But the government refused to arrest him. It cited the impact this might have on ongoing peace negotiations in Sudan and the decision to grant immunity to all delegates attending the AU Summit.
In March this year South Africa’s Supreme Court of Appeal accused the government of “disgraceful conduct” and ruled that the failure to arrest al-Bashir was unlawful. Unsurprisingly, the government remained unrepentant.
In the case of Burundi, there is general agreement that the decision to withdraw from the court is informed purely by self-interest. President Pierre Nkurunziza’s government is attempting to avoid an ICC investigation into ongoing human rights abuses since last year. But some legal scholars argue that its withdrawal will have no effect on the court’s jurisdiction over the alleged crimes.
South Africa’s decision raises concerns about global justice more broadly, and more specifically the issue of immunity for heads of state.
First, a number of human rights NGOs, among them Human Rights Watch, have decried the decision as a “slap in the face for victims of the most serious crimes”. According to the African Centre for Justice and Peace Studies
South Africa’s intended withdrawal from the ICC represents a devastating blow for victims of international crimes across Africa.
Senegal has called on South Africa and Burundi to reconsider their decisions.
Second, under the leadership of then President Nelson Mandela, the country played an important role in encouraging other southern African states to ratify the Rome Statute. According to renowned jurist Justice Richard Goldstone, South Africa’s withdrawal detracts from Mandela’s “inspiring legacy”. Goldstone is the former chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and International Criminal Tribunal for Rwanda.
In announcing its decision, South African’s Department of Justice argued that its obligations under the Rome Statute where in conflict with its obligations under customary international law. It said:
… the Rome Statute of the International Criminal Court compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the International Criminal Court […] and to surrender such persons to the International Criminal Court. We wish to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent.
In fact South Africa adopted the Rome Statute into domestic law in 2002.
Sovereign immunity was a well-established norm of international society for much of the modern period. But since the end of the Cold War it is a norm that has been gradually eroded through judicial decisions. An example is the Pinochet case.
Immunity has been further eroded by new human rights norms, such as responsibility to prevent genocide and the establishment of new international criminal justice mechanisms. These include the tribunals for Yugoslavia and Rwanda.
Indeed, the establishment of the ICC was lauded as codification of the idea that heads of state were no longer beyond the law. Thus South Africa’s decision appears to be both morally and legally regressive.
This year, following the embarrassment of the Kenyatta and Ruto cases, the court, through the recent convictions of Jean-Pierre Bemba Gombo and Ahmad al-Faqi al-Mahdi, made significant progress in undermining the idea of sovereign immunity (Bemba) and the extension of what is not acceptable during combat (Mahdi).
South Africa’s decision is not a death-knell to the ICC. Nonetheless these latest developments are of justifiable concern to the court. The president of the ICC’s Assembly of States Parties has called on both countries to reconsider their positions. This, amid fears that
this disturbing signal would open the way to other African States withdrawing from the Rome Statute.
South Africa’s withdrawal will take a year to come into effect. In the days since the withdrawal became public, the decision has been declared unconstitutional by civil society groups. They are promising a legal challenge.
But the ongoing success, and indeed relevance, of the ICC will not be determined by legal challenges in South Africa. Rather its relevance will be determined by African states party to the court who have overcome the damaging legacy of sovereign immunity. Likewise, the voices of those who without the court would have no recourse to any form of justice will ultimately determine its existence and relevance.