The news that South Africa will begin the process of withdrawing from the International Criminal Court was chased very closely into our inboxes and mobile notifications by the reaction from the Democratic Alliance that the notice handed to the United Nations would be contested in court. Hours later, the condemnation had spread around the world. There is no surprise here. The decision was legally dubious, and perhaps even unconstitutional. The reasons advanced for the move are weak, and the repercussions enormous.
It could be that justice minister Michael Masutha, who announced the decision, international relations and cooperation minister Maite Nkoana-Mashabane, who handed the notice in at the UN, and President Jacob Zuma were unaware of the fact that our membership of the ICC is codified by an Act of Parliament. That does not seem very likely though. It is more likely that they chose this dumb tactic regardless of the consequences.
According to the document sent to the UN secretary-general, South Africa would withdraw from the court – set up to try some of the most henious crimes like crimes of aggression, crimes against humanity and war crimes – because it found “that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court”. This of course relates to the great escape of ICC fugitive and Sudanese president Omar al-Bashir from South Africa last year, in spite of a notice from the court’s chief prosecutor and a local high court reminding our government of its legal obligations.
This decision will not miraculously shield the government from the consequences of that particular lawsuit – the withdrawal would only apply from next year and would not give a retrospective protection. It’s done. The mess has been made. The DA will seek a court injuction against the notice, which barring some legal loophole none of us thought of, it will get. Alea iacta est.
It is worth remembering just how unpopular in South Africa and abroad the decision was to let Bashir escape the country. Not even the staunchest of ICC critics could justify our government colluding to thwart a law it once championed and gladly signed at that 1998 Rome conference. The only avenue that will be left open for Zuma to realise this plan is through Parliament. He will have to whip his party into shape to ram through a bitterly unpopular repeal, with an irate public watching all the way. You don’t need me to tell you how difficult Zuma has found it in the National Assembly of late. With his own chief whip in open revolt against him, does he think he has the political capital to pull this off, on top of everything else?
The real tragedy is the amount of political capital that this move will needlessly expend on the international stage. Ever since the end of apartheid, South Africa has been considered a leading light on the international stage on issues of human rights, peace and justice. Much of this capital was earned by the way we fought to build and defend the ICC, against the frantic efforts of several powerful Security Council nations to kill it before it was set up. This includes the United States, which has never ratified the Rome Statute.
South Africa could have led the fight to give the ICC the scope of power that would turn it into a real tool against the aggression of the powerful against the weak. We could have rallied other African countries, as we did in the 90s, to fend off the US, to push for the ICC to cover the actions of the US, China, Israel and other states that refuse to ratify it. Instead, we’ve thrown away all of that. And for what? What does South Africa know about Bashir’s war in Darfur that the ICC prosecutors don’t know?
By this action, we will stand alongside an unedifying line-up of aggressors and war criminals – I don’t just mean Bashir and other African génocidaires. We now stand alongside those who refuse to ratify it, lest their covert wars in the Middle East, or near-genocidal practices in the Gaza Strip suddenly attract the interest of ‘foreign courts’, as they put it.
Nothing stops South Africa from solving its problems with the ICC whilst still maintaining its membership. Nothing in the notice submitted to the UN, nothing in the comments made on Friday by Masutha, and certainly nothing in South Africa’s written submissions to the ICC’s assembly of state parties about the conflicts in various interpretations of the law, such as the view that the Diplomatic Immunities and Privileges Act of South Africa overrides the ICC’s requirement for member nations to act on its arrest warrants.
So what is the real reason for this action? Is this another brick in the castle that Zuma is attempting to construct around him and his cronies? Is he doing to the law what he did to the NPA and the Scorpions?
It is important to remember that a lot still needs to happen before we’re formally out of the ICC. We are not forced to see this through. Crucially, the African National Congress does not have to go along with this. More and more power dealers are starting to find their voices in opposition to state capture, and against the hunt of Finance Minister Pravin Gordhan. They need not wait years to defend the party’s international legacy that it has laboured to build over the years.
Sadly, every time that Africa attempts to genuinely challenge the ICC’s dogged blindness to crimes happening in other parts of the world whilst diligently policing this, it will first have to fight through the perception that we’re merely seeking impunity for the numerous war criminals who masquerade as leaders of our people. Who knows how long reformation will take now? It may never come.