Many consider South Africa's departure from the ICC a betrayal.
COMMENT
Last week, South Africans learned some shocking news — their government has notified the United Nations of its intention to leave the International Criminal Court (ICC), the only permanent international institution able to bring those who commit the most heinous crimes, including war crimes, crimes against humanity and genocide, to justice.
The notice caught many South Africans and other people around the world off guard. It also surprised some high-ranking government officials and even Parliament, which approved the ratification of the Rome Statute in 1998 and signed it in 2002.
Simply put, not many people saw this coming.
We now know that International Relations and Co-operation Minister Maite Nkoana-Mashabane led the initiative to leave the court in a letter dated October 19.
The thought of South Africa leaving the ICC, whose statute bears the marks of South Africa’s historical struggles by recognising apartheid as a crime against humanity, has sent shockwaves around the world. It’s a blow to the fight against impunity for crimes under international law in Africa and beyond.
Among the reasons given for leaving the court, South Africa is citing various concerns about the relationship between the UN Security Council and the ICC, and the court’s “targeting” of African states.
In her letter, Nkoana-Mashabane says “perceptions of inequality and unfairness in the practice of the ICC … not only emanate from the court’s relationship with the Security Council, but also by the perceived focus of the ICC on African states.”
Whereas some of South Africa’s concerns regarding the ICC might be legitimate, especially considering the power that permanent members wield over Security Council referrals to the court, it is my contention that the country would be better placed to fight these battles by staying in the court and providing leadership from inside.
But the argument that the ICC is targeting African states is fundamentally flawed, although it is often cited (and probably popular on the continent, given well-known double standards).
And the argument certainly does not provide sufficient basis for a powerful and respected country like South Africa, a self-proclaimed champion of justice and human rights, to abandon the court.
It is important to point out that many of the cases currently before the ICC have been referred to it by African countries themselves, who view the court as the only institution that can prosecute perpetrators of crimes under international law and grant justice to the victims in these situations.
For example, in July 2012, the Malian government referred the situation regarding war crimes committed in the country since 2012 to the ICC.
The court commenced its investigations in January 2013, with a focus on war crimes committed since 2012. On September 27 2016, the court convicted Ahmad Al Faqi Al-Mahdi, a senior member of the Ansar Eddine armed group, for the war crime of intentionally directing attacks against religious buildings and historical monuments.
In April 2004, the government of the Democratic Republic of Congo (DRC), where South Africa has spent millions on efforts to bring about stability, referred the situation in the country to the ICC.
The ICC has conducted investigations into crimes under international law committed during the armed conflict in the Ituri region and North and South Kivu provinces, where countless people were killed and others were raped, tortured or had their homes pillaged and destroyed.
The ICC’s work on the DRC has led to the conviction of two leaders of armed groups, Thomas Lubanga Dyilo and Germain Katanga, and a trial is underway against another armed group leader, Bosco Ntaganda.
And, in September this year, Gabon requested that the court open an investigation into possible crimes under international law committed during unrest triggered by the disputed August 2016 elections in the country, in which dozens of people were reportedly killed.
These cases demonstrate the relevance of the ICC and the role that it can play in enhancing the international criminal justice system in order to fight against impunity. They also demonstrate the support that African governments have offered to the court.
South Africa’s fallout with the court stems from its failure to arrest Sudanese President Omar Al-Bashir, when he visited the country to attend the African Union summit in June last year.
Al-Bashir is a fugitive from justice and faces two ICC arrest warrants in connection with his alleged role in crimes under international law, including genocide, committed in Darfur, where countless people have been killed and displaced.
Crimes under international law continue to be committed in Sudan and Amnesty International has recently gathered horrific evidence of the use of chemical weapons in the Jebel Marra area in Darfur, where an estimated 200 to 250 people may have been killed this year alone.
A case is currently pending before the Constitutional Court, which will decide whether South Africa violated its obligations under international and domestic law when it failed to arrest Al-Bashir.
We need a reminder here. The Rome Statute is one of the two international instruments that have codified apartheid as a crime under international law and South Africa played a prominent role in supporting the establishment of the court.
By washing its hands of the ICC, the South African government is not helping the cause of millions of victims of human rights violations around the world.
If it is concerned about the relationship between the Security Council and the ICC, or has concerns about ICC procedures, South Africa should be seeking to remain in the ICC and advocate for the changes that it wants to see. Debates are won on the table, not from outside the room.
With three sub-Saharan countries — Burundi, South Africa and now Gambia — having resolved to leave the court this month, there could be a domino effect in the region that will have serious consequences for victims of human rights violations.
South Africa must rethink its decision to leave the ICC. In fact, in the past few days, several people and institutions have expressed regret over this decision.
As a champion of dialogue as a means to resolving disputes, South Africa must show the way and, together with other key rights-respecting states, begin to seriously provide global leadership on human rights.
By opting out of the court, South Africa is effectively turning a blind eye to millions of people around the world whose rights have been violated with impunity in places such as Darfur, the DRC, Palestine and Georgia. Staying in the ICC would be a sign of solidarity with the victims of human rights violations around the world.
The ICC is not perfect but, if necessary reform is to take place, it needs the support and constructive engagement of countries such as South Africa.
Deprose Muchena is Amnesty International’s director for the Southern Africa regional office