Africa Watch

Dumping the ICC makes SA complicit in global human rights abuses

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In an extraordinary but not unexpected move, the South African government (SAG) decided to withdraw from the International Criminal Court  (ICC). A decision with far-reaching consequences.

The signs that it was coming, date back to the Bashir fiasco in June 2015 when the ANC-led government under Jacob Zuma kicked another one of Nelson Mandela’s ideals into touch.

Under President Mandela, promoting human rights internationally was South African foreign policy priority. The country was indeed widely respected for its role as founding member of the ICC in 1998.

Not only was South Africa the first African country to sign up, but it ensured that Africa is today the best-represented continent in the ICC.

Going a step further, the South African parliament in 2002 adopted the ICC’s founding Rome Statute into domestic law.

On 19 October 2016, almost by stealth – not even informing parliament, whose approval it constitutionally needs – the SAG announced its withdrawal from the ICC.

It gives effect to a proposal of the ANC’s National General Council a year ago that South Africa should rescind its membership of the ICC.

The negative response to the announcement was well summarised by the Mail & Guardian, concluding: “The reasons advanced for the move are weak, and the repercussions enormous ... It is more likely that they (SAG) chose this dumb tactic regardless of the consequences.”

Critical response

All opposition parties and several heavyweight civil society organisations immediately condemned the announcement, with the main opposition Democratic Alliance (DA) declaring it would approach the Constitutional Court to get the decision overturned.

An assurance from Minister of Justice Michael Masutha that the decision will still be presented to parliament did not placate any critics.

The ANC’s parliamentary majority and its NGC’s recommendation make parliamentary endorsement a mere formality and just a “tick-box exercise”, said DA federal executive chairman, James Selfe.

Motivation

The essence of government’s motivation for its withdrawal, in the words of Justice Minister Masutha, is that the ICC’s requirements to bring to justice people guilty of genocide, war crimes, crimes against humanity and crimes of aggression are, “... in conflict with our (government’s) own laws and jeopardises our relationships with foreign countries where we may be attempting to restore peace and stability”.

Foreign Affairs Minister Maite Mashabane’s promise to the United Nations Secretary- General that South Africa was “committed to fight impunity and to bring those who commit atrocities and international crimes to justice” lacks credibility after government shirking its responsibility to arrest Bashir.

Not only did the SAG ignore the ruling of two of the country’s courts, but it even assisted Bashir to leave the country.

Ironically, South Africa’s withdrawal from the ICC does not affect any past obligations to cooperate with any ongoing ICC proceedings or investigations. The SAG remains duty-bound to execute ICC’s instructions regarding Bashir.

Appeasing Africa

Against the background of the African Union’s (AU) appeal to member states to withdraw from the ICC, South Africa’s announcement – two weeks after Burundi became the first African country to do so – could be interpreted as a transparent attempt to consolidate its leadership position on the continent by appeasing other African heads of state. 

Particularly those heads of state who are most vulnerable to ICC prosecution. There is general consensus that more African states will follow South Africa. 

The expected exodus, which could have far-reaching consequences for the future of the ICC, has already started with Gambia announcing its withdrawal, arguing it, “is warranted by the fact that the ICC, despite being called International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”.

Ironically, the ICC’s chief prosecutor, Fatou Bensouda, is a former Gambian justice minister.

Uganda’s President Museveni, himself not a stellar democrat, applauded South Africa’s decision and described the ICC as “useless”.

Namibia also said it might consider terminating its ICC membership. It is only a matter of time before Kenya, who triggered the latest anti-ICC campaign after President Uhuru Kenyatta was indicted by the ICC (since withdrawn) for election violence in 2008, will follow.

The Bashirs of this world must be rejoicing and Bashir himself has gleefully called on the rest of Africa to follow South Africa’s example.

Not everyone agrees, however, and Botswana’s Foreign Minister, Pelomoni Venson-Moitoi, a candidate to become the next AU chairperson, said Africa should work to reform the ICC from within, rather than pull out.

Some merit

There is, however, some merit in the complaints and perceptions of Africa and the AU about ICC bias towards the continent. 

Only Africans have thus far been charged by the ICC. But most requests for action have also come from African countries, with their own judiciaries not capable of delivering justice to victims. The perceptions of only Africa being targeted, nevertheless persist.

It is also true that the ICC is greatly hampered by the absence of major states in its structures. This includes the United States, Russia, China, India and Pakistan who declined to ratify the Rome Statute and to subject themselves to the jurisdiction of the ICC.

This greatly restricts the ICC’s ability and capacity to carry out its mandate.

Missed opportunity          

Most commentators agree that the decision of the SAG to withdraw from the ICC was a mistake and an opportunity missed.

Not only did it create the impression that South Africa is indifferent to the ICC’s role in bringing to justice people guilty of genocide, war crimes, crimes against humanity and crimes of aggression, but also that South Africans are not serious about human rights and the plight of the weak and unprotected.

Instead of working tirelessly and relentlessly to change and reform the ICC from within and expose the hypocrisy of the US and others, South Africa opted to walk away, forfeiting any chance to improve and strengthen an international institution that could contribute greatly to making the world a better place.   

It is opting for the popular African alternative.

According to Minister Masutha South Africa will, “work with the African Union and the other countries in Africa, to strengthen continental bodies such as the African Court on Human and People’s Rights, created to deal with such crimes and to prosecute the perpetrators”.

However, the AU’s alternative to the ICC, the 2014 Malabo Protocol, to date remains a pipe dream. No state has ratified it yet and it is not expected to be operational for at least another decade.

The Malabo Protocol is in no way an improvement on the ICC, and has little chance of success. At least 15 AU member states must ratify the Malabo Protocol, before the African Court of Justice and Human Rights can start to function with criminal jurisdiction.

Financing it is also problematic.

African countries are notoriously unwilling to commit to financial responsibilities, the AU’s own funding, for more than 50%, comes from Western donors and the African Court will be a costly operation. The ICC, for example, has an annual budget in excess of US$140 million.

Ironically, Western donors will probably have to finance Africa’s alternative to the ICC.  

The African alternative to the ICC is also craftily designed. The issue of immunity is taken care of by providing heads of state and senior state officials with immunity, allowing the likes of Bashir to carry on regardless, without fear of consequences.

Writing in The Conversation, professor Magnus Killander, extremely courteously, laments: “It’s a sad day for international justice when those, the political leaders, who in many instances are most responsible for international crimes can evade justice”.

Some consequences

Dumping the ICC deprives Africa of any chance to also bring to book non-African perpetrators of war crimes and gross human rights abuses.

The George Bushes and Tony Blairs of this world, so often cited as examples of ICC double standards and hypocrisy, will permanently walk free.

South Africa will acquire the stigma of betraying the victims of human rights atrocities across the world. No longer can it be regarded as a champion for freedom and justice for all, but will be associated and considered an ally of the chief transgressors of human rights, including Russia, China, Zimbabwe, North Korea, Syria and Mianmar.

Actions speak louder than words and South Africa has sent a loud and clear message to war criminals and human rights violators that they can operate with both immunity and impunity.

Reconsider

South Africa has a year grace, the time it takes for withdrawing from the ICC to take effect. There is still time for the country’s policymakers to reconsider their ill-fated decision.

Let them do what is right.                                                                         

by Garth Cilliers

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