On Friday, shortly after news broke of SA’s attempt to withdraw from the ICC, the president of the International Committee of the Red Cross (ICRC) Peter Maurer told the Mail & Guardian his immediate concern with the move was one of perception.
“I’m today more worried about the signal that this gives to the international community than about a real decision that would have been taken already.”
The ICRC has a complicated relationship with the ICC. It broadly supports the court, but is careful not to be seen as putting pressure sovereign political decisions – such as whether or not to sign up to the Rome Statute. Its support also has hard limits: in order to allow them to operate in theatres of war, Red Cross staff and officials have immunity from being compelled to testify in criminal matters – including at the ICC. The ICRC also serves as a sort of watchdog over the ICC, with monitoring and support visits to those detained under its auspices.
None of which makes the organisation any less concerned about the way South Africa is going about ending its relationship with the ICC, and the justification it is using.
“The signal that I read from today’s news is that there seems to a be a contradiction between justice and peace, or justice and negotiations,” Maurer said.
And that his organisation most certainly does not agree with. The ICRC would not want to see on-paper participation in the ICC without the will to implement it, Maurer said.
Rather a withdrawal from the court and a debate that brings about true consensus on how to prosecute crimes against humanity than that. But “if you are serious about protecting civilians” in conflict situations, “then you also need to be serious about envisioning multiple ways to do it”.
Informal justice – negotiations, deals, perhaps even impunity for perpetrators – is one way. Formal prosecution is another. The threat of the latter, with all its retributive aspects, may help implement the former, but they are not mutually exclusive, and saying so is a terrible idea.