Why SA must not withdraw from the ICC

The recent statement by the ANC at its national general council that South Africa should withdraw from the International Criminal Court (ICC) is alarming.

We should not so easily forget the words of Nelson Mandela in 1998 when we decided to join the court: “We have sought to ensure that the ICC is guaranteed independence and bestowed adequate powers. Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court.”

South Africa’s decision to join the ICC was about more than membership of a court. It was indicative of our country’s deep commitment to human rights at both the domestic and international level. This commitment and recognition is one that was held even before the ANC became the ruling party.

Going back as early as 1993, in outlining what was to become South Africa’s foreign policy, Mandela said: “South Africa’s future foreign relations will be based on our belief that human rights should be the core concern of international relations, and we are ready to play a role in fostering peace and prosperity in the world we share with the community of nations … The time has come for South Africa to take up its rightful and responsible place in the community of nations.

“Though the delays in this process, forced upon us by apartheid, make it all the more difficult for us, we believe that we have the resources and the commitment that will allow us to begin to make our own positive contribution to peace, prosperity and goodwill in the world in the very near future.”

We had sincere and noble intentions when we made the decision to join the ICC. We believed in the ideals that it stood for and the role that South Africa would play in realising these ideals. We believed that the lives of many people, the world over, depended on these ideals being realised.

This was not the vision of Mandela alone. Lest it be said that the situation had changed, I am reminded of the words of the then deputy minister of justice and constitutional development, Andries Nel, in April 2013: “African states were amongst the most ardent proponents of the creation of the International Criminal Court during the negotiations leading to the adopting of the Rome Statute. It is also no accident that with 34 members … Africa remains the biggest single regional block in the 122-member Assembly States Parties to the Rome Statute.

“South Africa views the [ICC], not in isolation, but as an important element in a new system of international law and governance. The importance of the International Criminal Court needs to be seen in the context of the need for the fundamental reform of the system of global governance.”

More recently, Chief Justice Mogoeng Mogoeng delivered a powerful address on the ICC in September last year, in which he said: “Africa and the rest of the world voluntarily created the ICC to combat unimaginable activities in the whole world. We owe it to ourselves and to posterity to criticise the ICC constructively, to support and strengthen the ICC. A properly resourced and supported ICC effectively negates the prospects of another World War II.

“It presents us with the real possibility of creating, and where this already exists, strengthening, world peace, stability and justice. Dialogue with Africa is crucial to address the strained relationship between Africa and the ICC and allied institutions. It should never matter who is involved and how influential they are … Indeed, Africa and the world need the ICC yesterday, today and forever.”

In the preamble to the Implementation of the Rome Statute of the International Criminal Court Act, 2002, South Africa made the solemn commitment to bring to justice persons who commit genocide, crimes against humanity and war crimes, be it before the domestic courts, in line with our international obligations, or before the ICC itself. South Africa made this commitment cognisant of its past atrocities, and signalled to the world its intention to help to drive a system of international criminal justice.

It is important to me that we remember why we joined the ICC to begin with. According to the ICC’s website, of the 123 state parties to the ICC, South Africa is one of 34 African states. South Africa was the eighth African country to ratify the Rome Statute, the ICC’s founding treaty, and the first African country to domesticate the Rome Statute into national legislation.

This meant that international crimes over which the ICC exercises jurisdiction became statutory crimes under our national law.

The question, then, is: What has changed since South Africa made such firm and repeated commitments, both to the ICC and the international human rights system more generally? What has precipitated the decision for South Africa to now withdraw?

Any decision to leave the ICC must be driven by more than loyalties to individuals or partisan interests. I am certainly mindful of the criticisms and frustrations with the ICC – many of which are well-founded, some of which I consider misplaced.

Yet, as the chief justice suggested in his address, there is a need for meaningful engagement with the ICC and the state parties, as well as between the ICC, the United Nations Security Council and the African Union, on the perceptions and realities to do with the functioning of the ICC.

Many countries are still plagued by systemic and egregious human rights violations at the hands of their leaders. This is, of course, not unique to Africa, but African states are not exempt from this either.

In my view, South Africa was wrong not to arrest President Omar al-Bashir of Sudan, who has been charged with various crimes by the ICC, when he was in the country.

This is not a judgment on his guilt or innocence, but rather an expectation that the South African government should at all times act in accordance with the obligations by which it is bound. President Uhuru Kenyatta of Kenya, for instance, made himself available to the ICC after he was charged. (The charges were later withdrawn.)

The response to the ANC resolution has been a mixed one, with a fair share of very serious concerns being voiced. But the reality is that this resolution has only skimmed the surface of the measures that will need to be taken at both the international and domestic levels if it is to come to fruition – measures which, in my view, will require extensive and robust public consultation if they are to pass constitutional muster.

The requirements, adequacy and appropriateness of these measures constitute a fight for a different day. Suffice it to say for now that I have no doubt that there will be such a fight if and when the need arises.

As we have seen from the Constitutional Court’s decision in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another, South Africa’s commitment to the ICC and the Rome Statute means that we have a significant role to play in ensuring access to justice not just for South Africans but also for victims in other states. Whereas I wholeheartedly support the ANC’s commitment to work towards strengthening the African Court of Justice and Human Rights (ACJHR), I fail to see why this work cannot be undertaken alongside our work with the ICC, rather than instead of it.

Access to justice is one of the key tenets of our constitutional democracy, and any steps that are taken to diminish the ambit of that right must be done with extreme caution and circumspection. It is, in any event, premature at this stage to decide whether the ACJHR is a viable alternative to the ICC before steps have been taken to strengthen the ACJHR’s mandate and operational capacity.

For now, I highlight just two notes of caution. The first is that South Africa is presently still bound to the ICC, both under domestic and international law. To act in flagrant disregard of these laws would make us a pariah in the eyes of the international community; worse, it would mean that we have been disingenuous about our commitment to the rule of law and a human rights system that we once so ardently undertook to uphold.

The second note of caution is that South Africa remains, in my view, a guiding light on the continent and the world at large for our commitment to protecting and promoting human rights. This is not a role that we should take lightly, and certainly not one that we should consider abandoning.

Do we really want to join the band of nations that have chosen to stay out of the ICC and avoid the scrutiny of its international criminal jurisdiction? I would hope not.

Advocate George Bizos SC works at the Legal Resources Centre