South Africa could have helped the ICC evolve

Major target: ICC prosecutors want to investigate war crimes committed during the Russian invasion of South Ossetia. (Photo: Gleb Garanich/Reuters)

Major target: ICC prosecutors want to investigate war crimes committed during the Russian invasion of South Ossetia. (Photo: Gleb Garanich/Reuters)

In the years since the International Criminal Court issued an order for the arrest of Sudanese President Omar al-Bashir for war crimes, crimes against humanity and genocide, African countries have repeatedly threatened to withdraw from the ICC. 

At the time, I interpreted these threats as strategic action aimed at indicating to the court that it should not be taken for granted that African countries would remain part of a system that, as they saw it, targets Africa disproportionately and unfairly. 

It took the international community about 70 years to erect a permanent international criminal court.

The initial discontent of African states was caused by the fact that for many years after the ICC was established African states were the exclusive object of the prosecutor’s investigations. African states seemed to be soft targets for a new court looking to establish its legitimacy. 

The ICC’s preoccupation with Africa led to the predictable accusations that the court is neocolonialist and insensitive to the realities of African conflicts and politics. 

The ICC prosecutor’s focus on Africa has disappointed and angered many who looked to the court to provide universal and impartial justice. African states have also accused the ICC of prosecuting crimes on the basis of political expediency that will not cause discomfort to the major funding states. 

But almost at the exact time the national general council of the ANC voted for withdrawal from the court, it can be said that the ICC is changing course. Very recently, its prosecutors have asked the court’s judges to grant them an official investigation into the allegations of war crimes committed during the August 2008 war between Georgia and Russia over the territory of South Ossetia.

This is important for two reasons: if the court allows the investigation, it will be the ICC’s first investigation outside Africa, possibly followed by prosecution. 

Second, the case involves a major power, Russia, which will do much to silence those critics of the court who believe the ICC has steered clear of intervening in cases involving strong states. 

The investigation into war crimes committed in Georgia will almost certainly be highly controversial. Moscow is expressing its concern over what it sees as the ICC’s unfair focus on its role in the war. 

Georgia, on the other hand, has so far welcomed the ICC’s intervention, at least insofar as it suits Georgians to lay the blame for the war at Moscow’s feet.

International court investigations have, for some time, been underway in Afghanistan, Columbia, Gaza, Iraq and the Ukraine.

Even if South Africa takes all the necessary steps to withdraw from the ICC, the country will still be bound to its obligations under the Rome Statute for one year. These obligations will include co-operating with the ICC by arresting Al-Bashir if he sets foot on our soil again. 

Moreover, as a member of the international community, South Africa will have obligations to prosecute heads of state for international crimes in terms of ius cogens norms and customary international law. The term ius cogens refers to the principle that some crimes are so serious that the entire international community has an interest in prosecuting them. 

But it is unlikely that South Africa will take its obligations under customary international law seriously once it has formally withdrawn from the ICC. 

Withdrawal from the ICC Statute will mean making a U-turn on undertakings that were long discussed and debated and in which South Africa took a leading role. 

One of the most important reasons South Africa should not withdraw from the ICC is it will mean the country will no longer be part of international debates on international criminal justice, which is ultimately an international issue and will be debated at that level.

For the sake of the victims of international crimes, for peace in Africa and the universality of criminal justice, it is important that South Africa and other African countries remain part of the ICC.

South Africa should not be supported to swim against the stream of international criminal justice. 

Of all countries, South Africa should not need a warning not to swim against this tide. 

Mia Swart teaches law at the University of Johannesburg

Mia Swart