The ANC’s threat to withdraw from the Rome Statute was highlighted in 2015 when the government did not arrest then Sudanese President Omar al-Bashir while he was visiting South Africa to attend an African Union summit.
The ANC is likely to make amendments to its decision to withdraw from the International Criminal Court (ICC) when it gathers for its policy and elective conferences later this year.
In an interview with the Mail & Guardian, the ANC head of its international relations sub-committee, Lindiwe Zulu, said there was a feeling that the governing party must apply its mind to align with the current balance of forces.
She said there was a combination of factors that the party would need to reassess, including the views of other African countries, whether the organisation had transformed, and discussions about the effectiveness of the court.
“The ANC is not an organisation that can bury its head in the sand when it does an analysis of a situation,” she said.
Information about the decision to withdraw from the Rome Statute was distorted as early as 2017 when the party was preparing for new leadership. The then minister of justice, Micheal Masutha, assured the media that the government would follow through with the decision, but the then former international relations minister, Lindiwe Sisulu, contradicted him, saying that no final decision had been made.
The ANC’s threat to withdraw from the Rome Statute was highlighted in 2015 when the government did not arrest then Sudanese President Omar al-Bashir while he was visiting South Africa to attend an African Union summit.
As a signatory to the Rome Statute, Pretoria was expected to arrest al-Bashir — indicted for war crimes, crimes against humanity and genocide — but the administration of the then president, Jacob Zuma, allowed him to leave the country despite a court order specifically prohibiting his departure.
Shortly afterwards, some proponents of the ANC called for the withdrawal of its obligation to implement the Rome Statute.
Former Sudanese President Omar al-Bashir (Reuters/Mohamed Nureldin Abdallah)
The proponents believed that government’s obligation to arrest heads of state implicated in crimes against humanity, specifically in Africa, complicated South Africa’s efforts to resolve conflicts. The ANC, along with other African states that were strongly agitating for an “African solution to African problems”, also believed the ICC was targeting the continent while ignoring leaders in the West.
Zulu said it was important that Africa builds its own structures to monitor and hold heads of state accountable for crimes against humanity.
“There is a movement by other countries that this institution is beginning to listen to what we are saying specifically on what we are calling them to do, not to be selective,” she said, confirming that the ANC would reevaluate its stance.
“We need to apply our minds. [W]ithout taking policy change through the necessary structures, we have no right to make those decisions. Government might discuss and agree with us but they cannot do that without the policy decision-makers, that is the ANC. This one has to go to a conference. Had we had a policy conference, I’m 100% sure it would have been one of the issues we looked at,” she said.
A South African diplomat, who spoke on condition of anonymity, said there had never been any hunger from the government to implement the ANC’s 2017 resolution. The ANC diplomat, who is against the government’s removal from the ICC, said it should instead work towards the removal of its image as a haven for human rights abusers.
The diplomat added that South Africa’s efforts to transform and build relations for the continent with the United Nations Security Council would be thwarted if it did not reevaluate its position.
In November last year, the chief prosecutor for the UN’s International Residual Mechanism for Criminal Tribunals (IRMCT), Serge Brammertz, met diplomats to discuss South Africa’s failure to comply with its international agreements.
According to the IRMCT website, Brammertz has reported to the UN Security Council that South Africa failed to arrest Rwandan fugitive Fulgence Kayishema, wanted for war crimes committed during the gencoide in that country. Kayishema was allegedly involved in the 16 April 1994 massacre of 1 500 Tutsi civilians who were crushed to death when a bulldozer was used to demolish a church housing refugees.
“South Africa took no steps to arrest Kayishema for a year and a half. It was not until December 2019 that an arrest operation was finally launched,” according to the IRMCT. “However, by then, Kayishema could no longer be found,” said Brammertz.
He said there were many critical leads in South Africa concerning a number of fugitives, for which the country’s authorities had not provided urgently needed support.
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