International Justice

ANC puts the ICC in the dock

ICC.jpg

The decision taken at the ANC National General Council that South Africa should rescind its membership of the ICC has been heavily criticised.

Short-sighted and irresponsible. That is the considered opinion of most political commentators and analysts in response to ANC National General Council’s (NGC) decision that South Africa should withdraw from the Rome Statute and the International Criminal Court (ICC).

South Africa enthusiastically became the first African country to sign up to the ICC in 1998 and it adopted the court’s founding Rome Statute into domestic law in 2002.

So what has changed now to compel the ANC to call for the termination of ICC membership?

Motivating its decision, the ANC claimed dissatisfaction with the way in which the ICC has conducted itself since its inception, lamenting: “The principles that led us to be members [of the ICC] remain valid and relevant ... however, the ICC has lost its direction and is no longer pursuing that principle.”

Criticism

The arguments put forward for this dramatic, but not unexpected, announcement are not receiving much support.

The popular response is that it is imperative for South Africa to stay a member and work diligently to reform the ICC from within. Absconding will defeat the purpose. A more productive approach would be to engage the ICC constructively.

If the ANC wants to change the ICC, they can only do that from within the institution, the argument goes. The ICC is far from perfect, but South Africa should lead the call for constructive engagement instead of seeking to mobilise a mass withdrawal.

An international criminal justice lawyer at the Southern Africa Litigation Centre argues: “The decision is both retrogressive and shows a lack of respect for human rights, the rule of law and the need to fight impunity. The call for withdrawal is particularly disturbing when one considers South Africa’s history and sensitivity to international crimes like apartheid, crimes against humanity, genocide and war crimes.”

The ANC is correct in arguing, and it cannot be denied, that the ICC has been less effective than it should be. We have also in the past reported on the double standards and hypocrisy often applied by, particularly, the US.

There is also universal agreement that the ICC would do well to broaden the geographical representation of its docket.

Saul Musker, writing in Daily Maverick, also alludes to the fact that the “institution lacks meaningful enforcement capacity, and has been hamstrung by the reluctance of many states to cooperate with its investigations and comply with its arrest warrants.”

But, he adds, “this is not a reason to leave the jurisdiction of the court. In the absence of any compelling evidence to suggest actual malice on the part of the ICC, and without any reason to believe that the existence of the statute has done more harm than good in the pursuit of human rights, there can no credible argument for withdrawal.”

Impact on SA’s image

The consensus seems to be that giving up membership of the ICC will seriously dent South Africa’s international standing and image, and not serve the country’s national interests. 

Musker concludes: “Should South Africa withdraw from the Rome Statute, a mass exodus of African states will likely follow and the foundations of the court will crumble. Not only will this set back the pursuit of meaningful international justice by decades, it will seriously tarnish South Africa’s global reputation as a proponent of human rights and a moral authority in the world, significantly reducing our political capital.

“Our prominence in a variety of international institutions relies on this reputation, as does our bid for permanent status at the UN Security Council. Ultimately, ANC spokespeople can whine as much as they want about their continued commitment to human rights, but the world will not care. The world will see us join the ranks of those states that have forsaken the most vulnerable victims of atrocity for short-term political gain. And that is remarkable for a country so young, and with such promise.”

Critics also argue it will only further alienate South Africa from its erstwhile traditional geopolitical and economic partners as relations with the US/European Union are becoming more strained and with South Africa moving ever more into the ambit of China’s embrace.

We predicted before that, considering the contents of the discussion document on foreign policy before the ANC NGC, this criticism would be ignored.

Offended

Could it be that the decision is perhaps also a case of sour grapes?

The ANC feels offended by the treatment the SA government (SAG) received with the Bashir saga, when failure to arrest him while attending an AU Summit sparked international condemnation

It prompted the ICC to order Pretoria to explain its decision; a drama that might repeat itself before year’s end. According to the Minister of International Relations and Cooperation all interested parties, including President Omar al-Bashir, have been invited to attend the China-Africa Cooperation meeting scheduled for 4 and 5 December 2015, with no special restrictions imposed on anyone planning to attend.

This time around, immunity for Bashir cannot be claimed. An intense and concerted international and domestic campaign for Bashir to be apprehended should be anticipated.

South Africa’s membership and obligations as ICC member are still likely to be in place as withdrawal from the ICC involves a long and complicated legal process.

What are the facts?           

The emotional outcry that the ICC has “unfairly targeted African leaders”, applying selective justice, with the rest of the world receiving far less attention, is refuted by facts.  

Of the eight ICC cases pursued in Africa thus far:

  • Two have been referred to the court by the United Nations (UN) Security Council (Sudan and Libya);
  • Four have been self-referrals – the state involved actually requesting the assistance of the court (the Democratic Republic of Congo, the Central African Republic, Uganda and Mali); and
  • Only two cases (Kenya and Côte d'Ivoire) were independently initiated by ICC prosecutors.

This contradicts claims that African states en masse had registered strong objections over several matters, which made the court appear to be solely focused on Africa. 

At present the ICC is investigating cases in Afghanistan, Colombia, Georgia, Honduras, Iraq, Palestine and the Ukraine. It is, therefore, incorrect to accuse the ICC of selectively targeting Africa.

Musker writes: “It is telling, of course, that no proponent of withdrawal has ever actually argued that any of the eight situations currently before the ICC does not deserve of prosecution in and of itself.”

In the process the victims of atrocities countries like in Uganda, the Central African Republic, Mali and elsewhere get forgotten in rhetoric and political posturing.

No solution

The ANC's answer to the ICC is that an African court should deal with African issues, and all African matters before the ICC should, without exception, be referred to the African Court on Human and People’s Rights (ACHPR).

This idea is unattainable and any attempt to transform the ACHPR is doomed to failure. In its current form it has no jurisdiction to handle crimes against humanity, genocide, and war crimes. It remains to be seen how and when the Court will be empowered to substitute the ICC.

Without the ICC, despite its current weaknesses and shortcomings, the African continent will be faced with continued perpetration of crimes, with no accountability or justice for the victims.

by Garth Cilliers

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