SA is not alone in leaving an ICC that has compromised itself

Supporters of Sudan's President Omar Hassan al-Bashir hold an effigy of Luis Moreno Ocampo, prosecutor of the International Criminal Court (ICC) in The Hague, during a protest. (Zohra Bensemra/Reuters)

Supporters of Sudan's President Omar Hassan al-Bashir hold an effigy of Luis Moreno Ocampo, prosecutor of the International Criminal Court (ICC) in The Hague, during a protest. (Zohra Bensemra/Reuters)

It has become necessary to clarify the misconception that the decision of South Africa to withdraw from the International Criminal Court (ICC) is “sudden”, “random” and “out of the blue”, when successive policy documents have outlined the governing party’s reasons for pursuing this course of action.

The Cabinet’s announcement that South Africa has begun the formal process of withdrawal from the Rome Statute is in line with the resolution of the ANC’s fourth national general council (NGC) of October 2015 that the government should review our membership of the ICC. It is the culmination of a long and extensive consultative process undertaken by the ruling party with its structures, engagement with the Assembly of Parties (ASP) to the Rome Statute and in seeking a common position from the African Union (AU).

As far back as the fourth national policy conference in June 2012, the ANC expressed concern at the actions of the ICC with regard to selective prosecutions and expressed the view that the ICC has vastly strayed from the original purpose for which it was established.

As part of the ANC’s commitment to participatory democracy and public consultation, the policy documents were released for public comment before the NGC of 2015.

Following the decision taken by the NGC, the ANC referred the process of withdrawal to the executive and to Parliament to process in line with their roles and responsibilities as outlined by the Constitution.

The separation of powers according to our Constitution has been observed, and the executive has begun the process in line with its obligations under section 231 of the Constitution.

The parliamentary process of legislative review that will lead to the repealing of some laws and the amendment of others will follow.

The process of withdrawal will take a period of approximately 12 months.

The minister of justice and correctional services, advocate Michael Masutha, has written a letter to the speaker of Parliament, Baleka Mbete, notifying Parliament of the Cabinet decision and requesting an opportunity to explain the decision to Parliament.

Despite this very clear signal that South Africa intends to follow the necessary legal procedures of withdrawal, last week’s announcement was predictably greeted with the usual threats of litigation from the opposition.

This is in line with the Democratic Alliance’s custom of sacrificing the national interest at the altar of political expediency.

In its haste to rush to the courts to challenge any decision taken by the democratically elected government within its constitutional mandate, the DA wants to co-govern this country through the courts. It is filing for direct access to the Constitutional Court, claiming that the Cabinet’s notice was issued without a parliamentary resolution and is thus invalid.

They further claim that a decision has been taken without parliamentary and public consultation, thereby “breaching the country’s commitment to international justice and rights”.

The ANC reaffirms its support for the primacy of international law and role of international justice in stamping out impunity for mass atrocities.

It was also during the 2012 national policy conference of 2012 that the ANC expressly said it does not condone authoritarian and violent regimes.

We have furthermore repeatedly affirmed our commitment to multilateralism as a way to advance the aims and objectives of the United Nations Charter but, equally, to the objectives on which the AU was founded.

The grim legacies of many wars and conflicts, not just on the continent but also around the globe, have necessitated the establishment of collective mechanisms that protect the weak and vulnerable, and ensure that those accused of war crimes and other atrocities are brought to justice.

With that said, it is the prerogative of any sovereign state regularly to review and assess the implications of any treaty or agreement and make a decision based on whether the respective treaty or agreement is still relevant or suits the country’s national interest.

In doing so, chief among these considerations should be whether such a treaty is in accordance with our existing laws, or if it in fact seeks to supersede or replace them.

The reality that the political opposition perhaps seeks deliberately to avoid is that the ICC in its current iteration falls far short of the noble objectives on which it was founded.

Firstly, in its current form, the ICC has morphed into an entity that empowers external actors and powerful interests to sit as judge, jury and executioner over signatory countries that enforce sanctions that they themselves will never be subject to, having wilfully chosen not to ratify the Rome Statute.

Secondly, it cannot be disputed that the list of cases referred to and prosecuted by the ICC shows evidence of double standards (bordering on hypocrisy) at play, particularly in the wake of successive wars in the Middle East, as well as serious violations of international law by nonsignatory countries.

Not only has the ICC failed to investigate cases that clearly fall in its jurisdiction, allowing some nations to behave with impunity, it has also pursued headline-grabbing cases that had to be withdrawn for lack of evidence.

This has given rise to an unfortunate impression that international justice is being pursued with vigour against some countries (many of them in Africa) whereas other countries, most in the developed world, get off scot-free.
The result has been increased cynicism from African countries about the court’s efficacy.

Thirdly, the claim, therefore, that some African countries are demanding a category of “exceptionalism” to escape the reaches of international law is false and must be rejected.

This also carries with it the false inference that victims of atrocities in Africa somehow do not “deserve” protection under international law.

Similar to South Africa, no other African country holds the view that mass human rights violations should go unpunished.

It cannot be that the withdrawal from the ICC should be equated with condoning human rights violations.

It also assumes that the domestic laws of African countries aren’t good enough to be used as a starting point to deal with human rights violations, and that we somehow cannot be trusted with setting up our own legal instrument to pursue justice.

The AU has actively worked to enforce accountability through the strengthening of institutions such as the African Court on Human Rights, which was established by article 1 of the Protocol to the African Charter on Human and Peoples’ Rights, and adopted by the then Organisation of African Unity in 1998. This protocol has so far been signed and ratified by 24 African countries.

Far from eroding South Africa’s standing in the international community (as the DA claims), our decision to withdraw from the ICC is in line with the common position of African countries on withdrawal from the Hague-based court.

There are those who would argue that, instead of withdrawing from the ICC, we should work on strengthening the court and addressing systemic, structural and other weaknesses within the court. But we believe we would rather work on strengthening the African instrument that is intended to serve the same purpose as the ICC.

The African Court on Human Rights is not a paper tiger, contrary to the perceptions of some. It has proven its ability by having just recently brought a successful prosecution against the former Chadian president, Hissene Habre, for mass violations.

The ANC government remains committed to the principles of accountability, due process and the rule of law.

It is a fact: there is growing cynicism over the role played by the ICC in Africa, and South Africa is not alone in holding this view.

If justice is seen as an ideal that only applies to some, faith in the rule of law is steadily eroded.

This is not even to consider the practicalities of remaining a signatory to a treaty that at times comes into direct conflict with our country’s foreign policy.

The circumstances surrounding the court case over the arrest warrant for the Sudanese President Omar al-Bashir last year was indicative of the way in which signatories to the Rome Statute may find themselves between a rock and a hard place: choosing between carrying out their obligations in terms of the treaty – and taking a decision with far-reaching (and potentially disastrous) foreign policy implications.

South Africa was expected to manage two essentially contradictory situations: on the one hand its obligation to provide immunity to accredited delegations to the AU Summit (which we did and duly gazetted) and, on the other hand, its obligation as a signatory to the Rome Statute to arrest a sitting head of state and turn him over to the ICC.

The consequences of South Africa’s decision are by now well known.

It is worth noting that, since last year, efforts towards peace in the troubled Darfur region appear to be gaining momentum, which is the result of ongoing peace talks between the Khartoum government and ethnic minority rebels, facilitated by Qatar.

A peace deal between the Sudanese government and a rebel faction was recently implemented.

In South Sudan, a transitional government of national unity has been formed.

Had South Africa arrested Al-Bashir, this would have been a pipe dream, and that is not even to consider what may have happened to the South African peacekeepers who were stationed in Sudan at the time.

Ultimately, the ANC wants to emphasise that nations of the world should be able to conduct their international relations and foreign policies in accordance with their respective national interest – without fear that their territorial integrity and sovereignty can at any point be undermined and violated. This does not render our commitment to the principle of international justice any less.

Edna Molewa is head of the ANC’s international relations subcommittee

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