Justice Minister Michael Masutha has presented the International Crimes Bill to Parliament’s justice portfolio committee. This could be a precursor to the country repealing the Rome Statute of the International Criminal Court Act (2002), and eventually withdrawing from the International Criminal Court (ICC).
This is very troubling news — for South Africa and the project of global justice itself. It is also unnecessary. South Africa can and should be a champion of the ICC and seek to improve the institution into which it has already invested so much. What happens next will determine whether South Africa is a leader or a laggard in international justice. It still has an opportunity to be the former.
This is not the first time that South Africa has moved towards withdrawal from the ICC. In October 2016, the government of Jacob Zuma announced that it would withdraw from the ICC for a host of reasons, including its belief that, to be an active and effective mediator in peace processes, it could not remain a member of the Rome Statute (the treaty that established the ICC).
Zuma’s efforts to withdraw South Africa from the ICC were thwarted by deft domestic legal action. The high court found Zuma’s efforts to withdraw South Africa from the ICC to be unconstitutional, and stipulated that parliamentary approval was necessary for any effort to repeal the ICC Act of 2002 and withdraw the country from the court.
After Zuma’s resignation, many observers hoped that his successor, President Cyril Ramaphosa, would not proceed towards withdrawing South Africa from the ICC. But this hope was not met by any confirmation that the ANC’s policy of seeking withdrawal from the ICC had changed. For his part, Ramaphosa has been silent on the matter. Still, as someone widely regarded as a proponent of international law and global justice, many believed that he would see the value and interest of remaining a state party of the court. Ramaphosa was on the International Commission on Intervention and State Sovereignty, whose conceptualisation of the Responsibility to Protect posited the ICC as a cornerstone of the anti-impunity firmament.
South Africa itself has an impressive history of supporting efforts to achieve justice and accountability for mass atrocities, including at the ICC. In his Africa Day address last week, Ramaphosa emphasised the importance of South Africa supporting international law and the United Nations. Everything should be done to avoid undermining that hard-earned reputation and record.
The government’s decision to continue pushing forward the International Crimes Bill means that the merits of South Africa’s withdrawal from the ICC will be debated in Parliament in the coming weeks and months. Hope in South Africa’s commitment to the ICC now resides with the country’s parliamentarians. But Ramaphosa and the ANC leadership could still play a role in making the best out of a bad situation. Here’s how.
Ramaphosa could consider announcing that, although this legislation is being put forward as a result of decisions the ANC had previously taken, he believes that South Africa should remain a member of the ICC and that ANC members of Parliament should vote freely on the Bill’s adoption.
Ramaphosa could subsequently welcome public and parliamentary debate as a way to assess the court’s record critically, and identify ways to reform the institution and improve its relations with African states.
This is undoubtedly needed. The ICC is far from perfect and in need of constructive reform. More must be done to ensure states can effectively manage the sensitive balance between achieving justice and building peace. In having such a debate, South Africa would join others, such as Tanzania, which have declared that, although the ICC is far from perfect, they will work to improve the court from within rather than abandon it.
Such a debate would have the further effect of increasing understanding of the ICC among policymakers and the wider public. This is desperately needed — in South Africa and beyond. Many of the criticisms regarding the role and effect of the ICC stem from the misunderstandings about the institution, and the court has always been poor at effectively communicating its work.
In siding with South Africa’s continued ICC membership and allowing a free vote for parliamentarians on the International Crimes Bill, Ramaphosa would help to ensure that the Bill was rejected and that the matter of South Africa’s membership in the ICC was emphatically, democratically and conclusively decided. Rather than undermine South Africa’s international reputation, Ramaphosa has a unique and rare opportunity to enhance it; it is up to him to seize this chance.
South Africa is at a crossroads. By working to ensure that any effort towards the withdrawal of South Africa from the ICC is defeated in Parliament by democratic and popular means, Ramaphosa and the government of South Africa would boost understanding of the ICC, identify ways to improve the court’s work and, functioning and demonstrate true global leadership. That is surely in the interest of a new government seeking to make its mark on the world stage and ensuring its election in the next polls. It is undoubtedly in the interest of all South Africans.
Richard Goldstone is the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia and a member of the Africa Group for Justice and Accountability. Mark Kersten is deputy director of the Wayamo Foundation and a fellow at the Munk School of Global Affairs, University of Toronto