At the close of the ANC’s national executive committee (NEC), the party issued a statement in which it argued that “the International Criminal Court [ICC] is no longer useful for the purposes for which it was intended”. This statement finally lays to rest any uncertainty as to where the current South African government stands in relation to the ICC.
The ANC’s decision to withdraw from the ICC will be perceived by some as an abdication of its adherence of international law and a retreat from South Africa’s commitment to a foreign policy driven by human rights. Yet if international law is not universally applied and respected by the most powerful countries in the world, it cannot be described as “international” from a moral and political perspective. The legitimacy of international law is seriously undermined if it only applies to one section of humanity and not another.
Since it was established in 2002, the ICC has only prosecuted and delivered rulings on African cases. All 36 individuals who have been summoned and for whom arrest warrants have been issued by the ICC are Africans. Africa has its fair share of violent conflicts, but this exclusive selection of Africans ignores war crimes that have occurred in other parts of the world — Iraq, Colombia, Sri Lanka, Chechnya, Tibet, Yemen, Palestine. The international criminal justice system is unable to prosecute the perpetrators of these crimes because they are shielded and protected by the political, diplomatic and economic might of self-interested powerful countries that are not party to the Rome Statute that undergirds the ICC.
One cannot question the importance of global justice and the international rule of law in maintaining stable societies. But global justice remains an aspiration, because the most powerful countries continue to violate the provisions of international law with impunity. Russia recently began its bombardment of anti-government forces in Syria, without any UN Security Council resolution, and is thus in violation of international law. Yet the US and its allies have been bombing in Syria, without any UN Security Council resolution, for a few years now, which means that Washington and its cohorts have been systematically violating international law for some time.
This issue of the illegitimacy of a one-sided international law is what is getting lost in the effusive protestations of South Africa’s chattering classes and in the widespread, righteous indignation at the ANC’s announcement.
It would be a good thing to see justice and redress for the victims of the aerial bombings in Iraq, Palestine, Syria, Yemen, Afghanistan and Pakistan, but that is not going to happen at the ICC because of the ability of the powerful countries to prevent certain cases from getting to the court.
The ANC’s decision is a political one, based on the self-evidently one-sided nature of the ICC’s prosecution, and it will have legal implications for the future relationship of the South African government and the court. What are the alternatives to ensuring the international rule of criminal law and justice for victims in Africa if the ICC ceases to operate on the continent?
In June 2014, the African Union adopted the so-called Malabo Protocol, which provided a listing of the provisions of the Statute of the African Court of Justice and Human Rights. The African Court has incorporated all the provisions of the Rome Statute pertaining to mass atrocities and serious war crimes.
The Malabo Protocol has been vociferously criticised by some commentators because one of its articles provides immunity for sitting heads of state and other state officials. Yet the practice of state immunity is part of a time-honoured tradition in international law. In fact, global diplomacy would not function effectively without the provision of immunity for diplomats; they must be able to conduct the affairs of state without fear of reprisal and threats to their personal safety. The challenge, then, is to ensure that the African Court gradually becomes strengthened so that it can foster a culture of non-impunity.
An important issue that might become overlooked in the cacophony of indignation is that the ICC represents an incomplete global project in the transformation of the global governance institutions. At the recent UN General Assembly, some speakers said the UN as we know it has become obsolete and that it had fulfilled its historical mission. Now is the time to come up with a new design and structure for the international system, one that does not privilege the most powerful countries at the expense of the medium and smaller powers.
Specifically, this will require dismantling the UN Security Council in its entirety. The efforts to reform it over the past 23 years have failed. In fact, the project of achieving global justice, which the ICC represents, will only be complete when the UN system is replaced by a new global democratic architecture.
Rather than pontificating endlessly on the minutiae of the legal and political interpretations of the actions of the South African government, it is important for us to keep an eye on the fact that the world remains a deeply unequal place if the most powerful can act on a whim and expect everyone else to sit back and accept that this as normal. Global dictatorships and tyrannies, like national ones, emerge when good people remain silent and do nothing.
Professor Tim Murithi is extraordinary professor of African studies at the University of the Free State and programme head at the Institute for Justice and Reconciliation in Cape Town.