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South Africa’s announcement on Oct. 21 that it intends to withdraw from the International Criminal Court, which has jurisdiction over war crimes, crimes against humanity and genocide, has met strong opposition from civil society groups in that country and other African and international human-rights organizations.
Africa has played major roles in the independent court, which was created in 1998 by the Rome Statute and written by international legal experts and began to function in 2002. Of the court’s 124 members — countries that have signed and ratified the treaty creating the first such institution — the largest number, 34, are in Africa. Nelson Mandela was an early and active supporter. The current president of the court’s governing assembly is Sidiki Kaba, justice minister of Senegal, which was the first nation to ratify the statute. The court’s chief prosecutor is Fatou Bensouda of Gambia, and four of the court’s 18 judges are Africans.
Prominent Africans and international defenders of the court are warning that South Africa’s decision, which would take effect in a year, could lead to a mass exodus of other countries on the continent. Burundi, with a repressive government accused of political killings, announced it was quitting the court a few days before South Africa, through the government of President Jacob Zuma, issued its decision.
“The President of the Assembly is concerned that this disturbing signal would open the way to other African States withdrawing from the Rome Statute, thus weakening the only permanent international criminal court in charge of prosecuting the most serious crimes that shock the conscience of humanity,” Kaba’s office said in a statement immediately following the South African announcement. (Article 127 in the Rome Statute clarifies withdrawal steps.)
William Pace is convener of the Coalition for the ICC, a network of civil society organizations from 150 countries, based in New York and The Hague, where the court is also based. In a statement from the coalition, Pace said: “Victims across Africa have called for justice time and again, either through national judicial systems or, when they fail, through the ICC. The Zuma government is demonstrating a terrible disregard for victims and the powerless in South Africa, throughout Africa and the world.”
The executive director of the Southern Africa Litigation Center in Johannesburg, Kaajal Ramjathan-Keogh, said that the country, a leader in international criminal justice in Africa, “has taken a retrogressive step that raises great concern about the government’s priorities with regard to matters of justice, accountability and the prevention of egregious crimes.”
Over the years, since its jurisdiction was established, the International Criminal Court has been widely criticized in Africa for appearing to be focusing primarily on African cases and leaders. Of the 10 current active investigations, all but one, in Georgia, are African. Preliminary investigations have broadened the court’s docket to include cases in Afghanistan, Colombia and Ukraine.
The first high-ranking conviction involved a former vice president of the Democratic Republic of the Congo, Jean-Pierre Bemba, who was sentenced in June to 18 years in prison for war crimes, including rape and pillage by fighters in a militia he commanded in the Central African Republic. On Oct. 19, he was additionally convicted of interfering with witnesses and attempting to subvert justice.
In other cases, most notably in Kenya and Sudan, the court’s prosecutor has been unable to proceed at an effective pace because of various obstacles thrown in her way by governments and a general unwillingness of numerous African leaders to cooperate with the court.
The slow progress of investigations, arrests and trials by the court has led critics to foresee its long-term failure to do the job it was created to accomplish, and this concern lurks behind fears of an African exodus, which is to be discussed at an African Union conference in early 2017.
The South African case is unique in that it grew out of a narrow dispute over the issue of immunity for heads of state or government when they travel from their respective countries. The court does not recognize this claim of immunity and, on the contrary, demands that all countries that are members of the court must detain people being sought in warrants for arrest.
In June 2015, Omar al-Bashir, the president of Sudan, who is wanted by the International Criminal Court on charges of war crimes, crimes against humanity and genocide in Darfur, arrived in South Africa to attend an African Union summit meeting. Darfur was the scene of mass atrocities in a civil conflict, including the murders of as many as hundreds of thousands of vulnerable civilians as well as peacekeepers (most of them Africans) and aid workers.
During Bashir’s visit in June 2015, the South African high court in Pretoria ordered the government to fulfill its obligation to the International Criminal Court under the Rome Statute and arrest him. Instead, the Zuma government defied the court and allowed the indicted Sudanese president to leave the country freely.
In a briefing for the media on the day of the announcement of the impending withdrawal, South Africa’s minister of justice and correctional services, Michael Masutha, said the country rejected the obligation to detain or arrest a visiting head of government, as demanded by the international court. He said that South Africa’s position was in line with its own policy on diplomatic immunity.
“We wish to give effect to the rule of customary international law, which recognizes the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent,” Masutha said. He added that the demands of the Rome Statute are not only in conflict with international immunity practice but also hinder South Africa in peacemaking efforts if indicted officials could not visit the country.
Masutha said, however, that parliament had to approve the cabinet decision to withdraw from the International Criminal Court, although that seems likely given the majority that Zuma and his African National Congress have in the legislature. Masutha added: “Authority to negotiate and enter into agreements is up to executive. But until Parliament withdraws from the Rome Statute, our legal obligations will remain.”
He said that South Africa would continue to honor its commitment to the court in the coming year. He did not explain why South Africa did not take the same position on the Bashir visit.
Nevertheless, the hiatus year ahead provides some hope to court advocates who would like to see the decision reversed. Richard Goldstone, the internationally recognized South African jurist who was chief prosecutor for UN criminal tribunals for the former Yugoslavia and Rwanda, called the South African decision “unconstitutional and unlawful.”
A similar situation arose in the United States, which has signed but never ratified the Rome Statute because of Congressional opposition and fears in the Pentagon that the court would target American forces. The administration of George W. Bush said soon after the creation of the court that it would “unsign” the treaty. Legal experts said that was not possible, and the controversy faded. Also, the growing horror of Darfur during the Bush years led the US to step back from blocking a Security Council referral of Bashir to the court. The US now has observer status in The Hague and takes part in discussions but cannot vote or participate in other actions.
China, India, Russia, Israel and Egypt are also among nations that have not signed or ratified the Rome Statute.
In 2010, the Obama administration summarized its official policy in a National Security Strategy paper this way: “Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”
David Scheffer, a professor of law and director of the Center for International Human Rights at Northwestern University’s Pritzker School of Law, was the US Ambassador at Large for War Crimes Issues who negotiated for the US in the writing of the Rome Statute in the 1990s. In an essay published on Oct. 24 in Just Security, an online forum for analyzing US national security law and policy, he recalled the vigor with which South Africa argued for strong commitments.
“There is a long history underpinning the African relationship with the ICC,” he wrote. “I recall vividly how forthrightly the South African Government argued for justice and against impunity in the years of negotiations leading to and beyond the Rome Statute of 1998. I personally witnessed it frequently, including when I sought African support for certain U.S. positions that would have narrowed the means by which to bring situations within the court’s jurisdiction. South Africa pushed back hard on our proposals.
“Frankly, there was no stronger voice than that of South Africa, which led the continent of Africa into the ICC with skillful enthusiasm as the country emerged from apartheid.”
In South Africa, the Democratic Alliance, the main opposition political party, which has been gaining strength in local elections, said it would approach the country’s Constitutional Court to ask it to declare the government’s decision to leave the International Criminal Court illegal, according to AllAfrica.com, a continent-wide news site.
In a guest column for AllAfrica, John Dugard, a leading South African expert on international law and an ad hoc judge on the International Court of Justice (the World Court), called the Zuma government’s decision “defeatist, naïve and reactionary.”
Dugard wrote, “The African states have largely themselves to blame for the fact that the continent has been singled out by the ICC, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders.”