/ 20 November 2023

Pretoria wants ICC to act against Israel by December or risk showing it is biased

Anc Solidarity With The People Of Palestine In South Africa
More than a 100 ANC members protested in solidarity with people of Palestine at the Israeli Embassy on May 25, 2021 in Pretoria. (Photo by Alet Pretorius/Gallo Images via Getty Images)

The International Criminal Court (ICC) is under pressure to show it is unbiased in its investigations after the South African government and other nations called on it to investigate the Israeli government, Pretoria said on Monday. 

At a weekly post-cabinet media briefing, Minister in the Presidency Khumbudzo Ntshavheni said there were no plans as yet by President Cyril Ramaphosa’s administration to close diplomatic ties with Israel. 

This comes ahead of parliament’s vote on Tuesday on an Economic Freedom Fighters motion for South Africa to close the Israeli embassy and cut ties with the Jewish nation after weeks of strikes on Gaza in retaliation for a Hamas attack on 7 October.

Ramaphosa indicated last week that Pretoria had written to the ICC to compel it to investigate Israeli Prime Minister Benjamin Netanyahu for war crimes. 

The South African government has called the attacks by Israel against Gaza — in which thousands of women and children have been killed and hospitals bombed — genocide. It is hoping that the ICC will play an active role in efforts for a ceasefire in the Middle East conflict.

Ntshavheni said the government was “expecting that the warrants of arrest for those on both sides of the aisle that have committed atrocities against women and children” would be issued. 

She contrasted the ICC’s response to this crisis with the speed with which it had issued a warrant of arrest against Russian President Vladimir Putin just weeks after the country declared war against Ukraine. Atrocities against Palestinians had been reported to the global court for years, she added.

“The conduct of the ICC as it relates to the conflict and the atrocities and genocide that has been committed against the [Palestinians] does not make them worth the paper they are written on. When we make a referral, we are giving them a last opportunity to prove to this country and the rest of the world that they are an objective organisation,” Ntshavheni said.

If the ICC did not take meaningful measures to show it was on the side of the people and justice and the protection of women, children and other civilians, “We will then know, not only as South Africa, but as a global community, that we need a new system of protecting the weak, the poor and the vulnerable because the ICC will not be such an institution,” Ntshavheni said.

The UN and the UN Children’s Fund have referred to Gaza as “a graveyard for children”. Last year, Amnesty International warned that the ICC’s legitimacy risked being eroded by an increasingly selective approach to justice. 

The hard line by South Africa’s government could spark another debate within the governing ANC about the country withdrawing as a signatory to the Rome Statute, which established the ICC.

At its 2022 Nasrec conference, the ANC withdrew its decision to exit the ICC, saying the global body had shown signs of transforming. 

The ANC’s back and forth on withdrawal from the Rome Statute dates as far back as 2017 —  as the ruling party was preparing for new leadership — when then justice minister Michael Masutha assured the media that the government would follow through with the decision. But international relations minister Lindiwe Sisulu contradicted him, saying that no final decision had been made. 

The ANC threatened to withdraw from the ICC after the controversy over the government’s 2015 failure to 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 Bashir — indicted for war crimes, crimes against humanity and genocide — but the administration of 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.

“Given that much of the global community is witnessing the commission of these crimes in real time, including statements of genocidal intent by mainly Israeli leaders, we expect that warrants of arrest for these leaders, including Prime Minister Benjamin Netanyahu, should be issued shortly. The ICC has been able to investigate the situation in Palestine since 2021, when the issue of territorial jurisdiction was settled,” Ntshavheni said on Monday.

“However, we have noted that the office of the prosecutor has continued to drag its feet despite the gravity of the situation. The current atrocities may not have occurred if these investigations took place as soon as the Palestinian authorities first made its reference.” 

With Bangladesh and the Comoros having added their own calls for Israel to be investigated by the ICC, Ntshavheni said they expected an arrest warrant to be issued before the ICC conference in New York in December.

“Failure to do so will be indicative of a lack of will to act by the ICC and a strong signal to the total failure of the global system of good governance and justice and the need to establish a new system,” she said.

“More children have been killed over the last month than those killed per annum in all conflicts combined. For the last three years, more UN staff members have been killed in Gaza than since the founding of the United Nations. The numbers of journalists killed have been staggering. These are all people killed by the actions of the Israelis, not to defend themselves.”