Africa Watch

South Africa, the ICC and the future

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South Africa’s decision to leave the ICC could cost the country international esteem but prove to be beneficial to the ICC.

Time will tell if South Africa will once again be on the wrong side of history as it did an apartheid state. Now it looks as possible that a democratic South Africa might be repeating the mistake.

Under ANC rule, particularly under President Jacob Zuma, South Africa is alienating itself in the international arena and runs the risk of becoming once again ostracized.

The latest example was the recent unexpected announcement that the South African Government (SAG) decided to terminate its membership of the International Criminal Court (ICC) of which South Africa was a founding member.

The announcement by the SAG followed shortly after Burundi announced its plans to withdraw from the ICC.

Predicted exodus 

Soon after the South African decision became public, many commentators and analysts predicted an exodus of African states from the ICC. It could leave the ICC severely weakened and restricted as African membership forms the backbone the institution.

With 33 signed up members, Arica is the best represented continent in the ICC.

Africa has, however, become increasingly critical of the ICC claiming that the court is too focused on Africa.

The perception of bias shown by the ICC, and its apparent reluctance to pay attention to Africa’s criticism, has led to a campaign spearheaded by the African Union (AU) asking its members to reconsider their continued ICC membership and rather help to strengthen and support the continent’s own alternative, the African Court on Human and Peoples' Rights.

Against this background South Africa’s announcement was seen by many as the catalyst that would signal the exodus.

With Gambia next to announce its plans to leave the ICC and Namibia, Malawi, Uganda and Kenya making similar noises, it seemed indeed as if a mass withdrawal was on the cards.           

Different picture

But, as the dust settled, a different picture started to emerge.

South Africa’s announcement raised considerable alarm with ICC and United Nations (UN) officials expressing concern that it could damage the reputation and capacity of the ICC to carry out its task to prosecute genocide, crimes against humanity and war crimes should Africa turn its back on it. 

But, nobody tore his clothes and covered his head with ash after the South African announcement.

The Secretary General of the UN, Ban Ki-moon, expressed regret and urged South Africa to reconsider its plan to withdraw, commenting that it could “send a wrong message on its commitment to justice.” He advised that the way to solve problems and disquiet, “... are best addressed, not by diminishing support for the court, but by strengthening it from within.”

Also in response, many countries pledged continued support for the ICC.

During the debate of the UN General Assembly’s review of the latest annual report of the ICC, some influential and prominent African states reiterated their support for the court and called for talks between the ICC and the AU to find a solution for Africa’s concerns.

Nigeria, Africa’s most populous country, Senegal, the first country to ratify the Rome Statute that established the ICC, Tanzania (where its president is waging a fierce campaign against corruption) and Botswana, known for holding views in stark contrast to fellow African governments – including expressing support for the ICC.

Questionable claim          

AU Commission chairperson, Nkosazana Dlamini-Zuma’s, claims that Africa is ready to deliver judgement without the ICC using as example the recent conviction of former Chadian dictator, Hissène Habré, by a Special African Tribunal in Senegal, which was ridiculed by the Chadian prosecutor, Jacqueline Moudeina.

According to Moudeina, "We were so naïve; today I laugh at our naivety. On our side we had the legal base that was needed. It was the convention against torture. All the necessary conditions were met to put Hissène Habré on trial.

“But, he was a former African head of state and the African Union is nothing but a union of African heads of state who cover for each other."

Habre’s conviction was the first time a former African head of state was tried by an African court for crimes against humanity, war crimes, and acts of torture, but it took all of 17 years!

Wider implications

The SAG’s decision on the ICC will not go down well with many prominent actors in the international arena, in particular the permanent members of the UN Security Council (UNSC).

South Africa’s ambition to become a permanent member of an enlarged Security Council could be in jeopardy.

The current five permanent members of the UNSC are reluctant to agree to the enlargement in membership for a variety of reasons.

It is argued, not necessarily true, that the sometime far-reaching consequences of UNSC decisions, it is imperative that they uphold a consistent and even approach towards global issues.

It should come as no surprise if the question will be put forward whether South Africa fit this requirement?

Some good could still, however, come from this episode.

If the ICC responds positive and accept Africa’s criticism as a “wake up call’’ and get its house in order, the court could fulfil its mission to go after tyrants, dictators and warmongers around the world bringing them to justice and help make the world a better and safer place.

by Garth Cilliers

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