Traveling Down The Wrong Path: South Africa’s Intention to Withdraw from the ICC

[caption id="attachment_11511" align="aligncenter" width="640"] The ICC's premises in The Hague, Netherlands. Photo by UN Photo/Rick Bajornas, via Flickr. Creative Commons.[/caption]

In February 2016, I wrote a piece for Africa Up Close on "South Africa, the AU, and tensions around the role of the ICC in Africa." The context of the piece was Sudanese President Omar al-Bashir's controversial visit to South Africa to attend the African Union Forum for China and Africa Cooperation (FOCAC) leadership summit in June 2015, and the subsequent call by Zimbabwean President Robert Mugabe in January 2016 for the withdrawal of African countries en masse from the International Criminal Court (ICC) owing to its "anti-African" stance. After presenting an argument against withdrawal from the Court, I ended the piece by stating that an outcome of withdrawal was, in any event, unlikely. I was sorely wrong.

What has unfolded since then has created concern among human rights lawyers and non-governmental organizations in South Africa and abroad. When al-Bashir visited South Africa, the High Court in Pretoria had a binding obligation to issue a warrant for his arrest, as South Africa has ratified the Rome Statute, which established the ICC, and domesticated its laws through our democratically elected Parliament.1 Controversially, al-Bashir was allowed to leave the country despite a court order issued for him to remain in South Africa.

The South African government appealed the High Court case on the basis that al-Bashir had immunity afforded to visiting heads of state. The Supreme Court of Appeal (SCA), the second highest court in South Africa, delivered a judgment that the conduct of the South African government in its failure to execute the ICC arrest warrant for al-Bashir while he was on South African soil was inconsistent with South Africa's obligations in terms of the Rome Statute, as well as section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002‚ and was in fact unlawful.2 The government appealed this judgment. The appeal, which was to be heard in November 2016, has since been withdrawn by the government.

The timeline of the events as they unfolded:

• On September 16, 2015, the state was denied leave to appeal by the North Gauteng High Court, indicating that there were no prospects of a successful appeal and that the issue was thus moot. The state petitioned the Supreme Court of Appeal and the matter was heard on February 12, 2016.
• On March 15, 2016 the SCA ruled that the government's failure to arrest President al-Bashir was unlawful and dismissed its application for leave to appeal with costs.
• On April 8, 2016 the government applied for leave to appeal to the Constitutional Court, the highest court in South Africa.
• On October 21, 2016 South Africa notified the United Nations General Assembly of its intention to withdraw from the treaty.

Thus, even before the highest court in South Africa was able to hear the appeal to the SCA case, the government made its surprising move to withdraw. In a notice to the United Nations, the government pronounced that its obligations with respect to the peaceful resolution of conflicts are incompatible with the functioning of the ICC. The usual procedure, according to Article 127 of the Rome Statute, is that a country's withdrawal takes effect a year after the UN Secretary General receives notification from that country's government.

The government's decision, which was finalized just as President Jacob Zuma returned from a visit to President Uhuru Kenyatta of Kenya, who was charged with crimes against humanity by the ICC before the charges were dropped in late 2014, is already having an impact. Earlier in October, Burundi had announced its intention to withdraw from the Rome Statute, and shortly after South Africa's decision, Sudan (which has never ratified the Rome Statute) called for more African countries to withdraw. The Gambia followed suit on October 26, announcing it will pull out of the ICC.

Leaving the ICC

Although some proponents have applauded the decision for standing up to foreign influences and responding assertively to the targeting and victimization of Africa and her leaders, there has also been a groundswell of resistance to the decision and the perceived undemocratic and short-sighted conduct of the Executive.

One of the strongest arguments by proponents of withdrawal is that the West is not measured by the same standards of justice. To quote Dr. Amy Niang,

"...South Africa's withdrawal from the ICC constitutes a commentary on the nature of the legal global order. The absence of a moral equivalence in the implementation of legal principles across all countries regardless of size and political and economic endowment has an immediate effect on the internalisation of the global legal regime as inherently biased. The global order is constrained by an absence of parallelism as a principle of international relations. Parallelism requires that the same jurisprudential rules and system of values, the same equivalent norms, be applied fairly and evenly in relation to all states."

This, however, is a technical argument based on international realpolitik which fails to take into account the need for Africa to lead in the protection of the human rights of her people against extreme abuses of power. The collapsing of the international criminal order — instituted in response to the atrocities in Rwanda and Yugoslavia, among others — should not be based on perceptions that may upon closer inspection be incorrect. Some reasons I have provided for not withdrawing from the Court are:3

• Withdrawal from the Court would contradict the values, commitments, and ideals of the African Union and individual African states, which are articulated in the African Union's Agenda 2063, as well as the human rights culture engendered so carefully by South Africa during the hopeful "Mandela years."
• The majority of cases before the ICC were referred to the Court by the African states involved, or by the UN Security Council. The court seldom, if ever, acts on its own.
• Withdrawing from the Rome Statute now is untimely and premature, as the continent has not yet established a criminal justice network or structure that can deal with prosecuting sitting heads of state. Ad hoc tribunals are not sufficient.
• While concerns regarding the impartiality of the ICC are perfectly legitimate, selectivity has thus far been a permanent feature of international criminal law in general. If the real preoccupation of African countries is the perceived partiality or selectivity of the ICC, then withdrawing from the ICC is not a solution, as withdrawal is unlikely to rid the international criminal justice system of selectivity.
• The Court is paying closer attention to crimes committed elsewhere, in areas where it has jurisdiction, with preliminary examinations in Georgia; Afghanistan; Colombia; Iraq / the United Kingdom (specifically, the actions of the United Kingdom in the Iraq War); Palestine; registered vessels of Comoros, Greece, and Cambodia (referring to the 2010 Israeli raid on the flotilla off the Gaza Strip); and Ukraine.
• It would be wiser to call for the reform of the court (composition, procedures, and so forth) rather than to repudiate international criminal justice altogether, in an isolationist twist. A reformist or revisionist agenda would allow for engagement and room for change.

Going Forward: Withdrawal?

Meanwhile, the South African Minister of Justice and Constitutional Development has stated that government will withdraw its appeal to the Constitutional Court, a case that was set to be heard this month (November 2016).

However, legal challenges are already in preparation. The South African Constitution (1996) does not set out treaty withdrawal procedures, but there is a sound legal argument that Parliamentary approval is necessary for withdrawal from the Rome Statute. Section 231 of the Constitution requires Parliamentary approval of treaties that are subject to ratification, and also for the domestication of treaties. Given that Parliament was constitutionally required to approve the Rome Statute twice – at the ratification and domestication stages – it would be inconsistent not to require Parliamentary approval before withdrawal. Such an argument is likely to be put forward by opposition parties, NGOs, and civil society groups in South Africa. These groups have already announced their intention to launch a review of the decision to withdraw from the Rome Statute.

Somewhat ironically, on September 15, the Prosecutor of the ICC, The Gambia's Fatou Bensouda, released her much-anticipated "Policy Paper on Case Selection and Prioritisation." The paper is a response to the criticism the court has received, and constitutes a vital moment in the court's history: it provides the standards by which the Prosecutor will select cases, manage priorities, and – arguably most importantly – manage expectations and dispel notions of bias. The policy makes needed changes to the ICC's approach to cases, opening a window into how the Office of the Prosecutor selects cases within a particular context, and how the cases are prioritized once selected. But it appears that for the South African government, this was too little too late in the wake of the al-Bashir embarrassment.

Professor Narnia Bohler-Muller is Executive Director of the Democracy, Governance and Service Delivery program at the Human Sciences Research Council in Pretoria, South Africa, which is a member organization of the Southern Voices Network for Peacebuilding, and Associate Professor at the University of Fort Hare.

1: Southern Africa Litigation Centre v. The Minister of Justice and Constitutional Development and Others 2015 (5) SA 1 (GP).

2: Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (867/15) [2016] ZASCA 17.

3: Bohler-Muller and Zongwe "It Is Self-Defeating for Africa (and South Africa) to Withdraw From the International Criminal Court" Africa Insight (forthcoming).