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South Africa’s reasons for leaving the ICC don’t quite add up

Omar al-Bashir (centre, blue suit) at the infamous 2015 African Union summit in Johannesburg. EPA/Kim Ludbrook

The government of South Africa intends to withdraw from the Rome Statute of the International Criminal Court (ICC). It had already notified the United Nations secretary-general to explain its intentions, and its withdrawal will take effect one year after the notification.

According to a government press release, the South African Cabinet reached the decision to withdraw from the ICC for three main reasons: a desire to preserve diplomatic immunity for incumbent leaders; umbrage at the court’s incompatibility with South Africa’s diplomatic mandate; and the ICC’s supposed bias against African states.

Strong stuff indeed – but do these arguments really hold water?

Immunity for incumbent leaders

The struggle over diplomatic immunity for sitting leaders infamously came to a head in 2015 when Omar al-Bashir, the incumbent Sudanese president, visited South Africa for an African Union summit. Al-Bashir stands accused of genocide and other international crimes in Sudan’s Darfur region, and is subject to an ICC warrant for his arrest. Despite this, he was allowed to leave South Africa in apparently chaotic circumstances before he could be arrested.

Subsequently, in its 2016 judgment, South Africa’s Supreme Court of Appeal ruled that although international law doesn’t currently provide a special exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries, the South African government should have arrested al-Bashir under domestic law. Persuasive in parts and expansive in others, the judgment described the South African government’s conduct as “disgraceful”.

But instead of appealing – the normal course of action for a government to take in a well-functioning legal system – the South African government instead responded by opting to withdraw from the ICC. The minister for justice and correctional services, Michael Masutha, explained that the domestic law that implements the ICC’s charter in South Africa is “in conflict and inconsistent” with the provisions of the Diplomatic Immunities and Privileges Act, 2001.

But in the current state of affairs, the Supreme Court of Appeal’s judgment continues to stand – as does its finding that the government acted unlawfully by allowing al-Bashir to leave.

Minding their business

South Africa’s second reason given for withdrawing is that the ICC impinges on the country’s own diplomatic mandate when it comes to resolving conflicts elsewhere, and in particular on the African continent.

As Masutha explained, the legal arguments around the failure to detain al-Bashir “pinpointed Pretoria’s main problem with the ICC obligation to arrest heads of state”. He went on to say that “what may need to happen is that we host conflicting parties, thus our international legal obligations may hinder our efforts to remain a key player in conflict resolution in Africa”.

The ICC’s home in The Hague. EPA/Martijn Beekman

But South Africa’s rationale in this case appears to jar with the work of the UN Security Council which, under Article 24 of the UN Charter, has primary responsibility for maintaining international peace and security. It was, after all, the Security Council that considered it necessary to refer the situation in Darfur to the ICC in the first place, citing violations of international humanitarian law and human rights law.

By not arresting al-Bashir, the South African government acted contrary to paragraph two of UN Security Council resolution 1593 (2005), which “urges all states and concerned regional and other international organisations to cooperate fully [with the ICC]”. And by failing to live up to this responsibility, it did the institutions of international justice potentially serious harm.

Anti-African bias

The third reason the South African government cites is the ICC’s supposed bias towards African states – and this is one issue where South Africa does have a case.

While it is often pointed out that the majority of cases currently before the ICC are either self-referrals from African states themselves or referrals by the UN Security Council, it’s wrong to dismiss this criticism as a mere “misperception”. The way the court is set up, together with its jurisdictional limitations, means there’ll inevitably be a geographic imbalance among the cases it handles.

A big factor is the court’s principle of “complementarity”, which essentially means that states have the primary responsibility to try international crimes. The role of the ICC is to try defendants for violating international law when states can’t or won’t put them on trial.

States that have signed up to the court and also have developed, well-functioning judicial systems of their own (such as the UK) are therefore unlikely to send defendants to be tried in the court, since they will most likely be tried domestically. States with weak justice systems, on the other hand, are more likely to refer cases to the court – and that includes many states in sub-Saharan Africa.

This imbalance is not necessarily a bad thing. The complementarity principle arguably impels states and regional organisations to up their judicial game. That’s what happened with the trial of Chadian dictator Hissène Habré, who was tried at the Extraordinary African Chambers in Senegal. He was found guilty crimes against humanity, summary execution, torture and rape, and duly sentenced to life in prison.

The ICC certainly has serious flaws, and it’s not in itself surprising that South Africa has apparently lost patience. But the government’s actions are a shame nonetheless. In 2002, when the Rome Statute came into force, the ICC was hailed as a historic step forward. Here at last was a court “for trying individuals responsible for war crimes as a powerful tool for prosecuting and preventing atrocities”.

The court has had some successes and several setbacks in its 15 years of operation, but it remains one of the best hopes we have for bring the abusers of state power to justice. The South African government’s move to back out of it is a retrograde step – one that will only encourage impunity for powerful perpetrators of some of the world’s most heinous crimes.

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