A view of the ICC premises.
South Africans woke up on the morning of 21 October 2016 to the shocking announcement that the Minister of International Relations and Cooperation, Maite Nkoana Mashabane, had submitted an instrument of withdrawal from the Rome Statute to the UN Secretary General in New York, two days before.
This notification signals South Africa’s intention to withdraw from the Statute that established the International Criminal Court (ICC) in a year’s time.
The legal veracity of this type of notification without proper consultation with and endorsement by parliament, which ratified the statute in domestic legislation, is still an open question. However, this seismic decision has far-reaching political ramifications for South Africa as it will shift how the country is perceived and received as an international actor.
South African opinion on this move has been split. Some have praised the government’s move against an institution that they believe has blatantly targeted Africans but left other violators of similar crimes untouched. Others have rued the decision, regarding it as another indicator of South Africa’s regression from the moral high ground it occupied after 1994.
Ironically, South Africa and other African countries were among the first supporters of the Rome Statute. Most African states have ratified the Rome Statute, as has all of South America, most of Central America and the EU states. Lest we forget, the discussions around the establishment of this court had been preceded in the 1990s by the Rwandan genocide and the broader Great Lakes conflict, and the mass atrocities committed in the Balkans as Yugoslavia disintegrated.
The noble objective of the ICC was to end the impunity of leaders, but only as a court of last resort. It was not meant to usurp sovereignty a priori or initiate regime change, but rather to provide recourse for victims in instances where states were unwilling or unable.
It has been frequently emphasised that with the exception of one referral from the Security Council, most of the African cases have been referred to the ICC by Africans themselves. But in a year in which we celebrate post-truth politics, the facts clearly don’t matter.
Should we be surprised?
Many South African foreign policy analysts have spent much of the last two decades lauding the country’s soft power, its moral high ground that has allowed it to punch above its weight and its dogged commitment to the establishment of a fairer, more rules-based international order. The country’s abundant soft power has come from its compelling peaceful transition, the narrative of reconciliation, and its commitment to good global citizenship. SA continues to advocate for reform of the global system to reflect the changing power relations and rise of many countries in the South, even if progress is very slow.
Nevertheless, since the end of the Cold War and the rise of the liberal international order there has been a gradual move in the global governance domain to adopt rules for a more just international society and one in which national sovereignty is not a convenient cover for perpetrators of mass atrocities and human rights violations. People, and not just states, have been recognised as needing protection from the impunity with which some states operate, and the mass atrocities of the 1990s in Europe and Africa attest to such an imperative.
Yet, in recent years South Africa’s foreign policy has displayed a worrying trend that has placed non-interference and sovereignty at the pinnacle of its international relations. This trend has been the result of a growing distrust of the actions of the West, of which the invasion of Iraq was the pioneer, but which was fortified by the invasion of Libya and the ensuing mayhem across the Sahel.
In addition, South Africa has been more coy about standing out from the African consensus, and officials have often said in private that the positions the government has taken on certain matters in international forums has been necessary to maintain African unity.
Lastly, the judicial embarrassment the government had to endure for allowing President Bashir to attend an AU summit in SA in June 2015, and subsequently its efforts to sneak him out of the country in the face of a court order that he should be prevented from leaving, were probably the last straw. Clearly, arresting president Bashir would have caused a diplomatic ‘incident’ and possibly foreshadowed SA’s isolation from the continent, but the government should not have flouted its own laws, especially after its representations to the ICC to waive its obligations under the Rome Statute so as to allow President Bashir to attend the AU Summit, were rejected. It should have simply – as it had done previously – strongly advised him that he could not attend. But the government did not. At the time, Obed Bapela, head of the ANC’s international relations committee, was quoted as saying that ‘the stance to choose Africa over the ICC was the best decision’.
This has become a country that follows, not leads.
The ANC’s discussion documents in preparation for the National General Council in September 2015 articulated the ruling party’s strong anti-Western and anti-imperialist perspective of the world. In its section on International Relations, the ICC made up most of the document’s section on ‘Transformation and Global Governance’. In arguing against South Africa’s continued membership of the Court, the ANC document described the ICC as a tool for regime change in Africa, and as an institution that has tended to act as a proxy instrument for non-member states. It ends by stressing that Africa must build its own alternative to the ICC and that it must operationalise the African Court of Justice and Human Rights (ACJHR). But the Malabo Protocol of 2014 has not been ratified by any state yet; it requires 15 ratifications to come into effect.
It is worth quoting from the NGC document to understand better the drivers of the ANC’s thinking on the ICC:
It is our view however that the ICC has gradually diverted from its mandate and allowed itself to be influence
[sic]
by powerful non-member states. We perceive it as tending to act as a proxy instrument for these states, which see no need to subject them [sic] to its discipline, to persecute African leaders and effect regime change on the continent. It is being used as a court against Africa, deliberately oblivious to the fact that African countries themselves were vocal in their support for the necessity of such a mechanism, with for example, Senegal being the first country to ratify the Rome Statute.
There is no national interest value for South Africa to continue being a member of the ICC. The manner that we were treated around the al-Bashir incident is consistent with the cheeky arrogance that Africa has experienced in its interaction with the ICC. Continuing to be in the ICC especially when the big powers who are calling the shots are themselves nit [sic] members, gives it the legitimacy it does not deserve. The West dominates the ICC through the influence they command within its structures and the huge financial contributions they make to its budget. In return, they use the ICC as their tool for regime change in Africa.
Trade-offs of peace: Justice vs Immunity
The instrument of withdrawal emphasises that while peace and justice must be viewed as complementary SA has found that its ICC obligations inhibit its ability to pursue the peaceful resolution of disputes in other parts of the world. At the press conference Minister of Justice, Mike Masutha, added that in prosecuting a sitting head of state from another country, it could imply that SA chose to be ‘complicit in the practice of forced regime change’.
However, the real nub of the issue is the immunity of sitting heads of state. The ACJHR is in essence and structure exactly the same as the ICC especially after the Malabo Protocol included the International crimes element – the only patent difference is that it exempts sitting heads of state from indictment… this issue is problematic because in so many of the instances, states are the perpetrators of violence against their people.
None of SA’s actions in the DRC, South Sudan, or Burundi were at risk because of ICC indictments. Neither was Bashir invited to SA last July to participate in peace negotiations. The ICC should be seen as one of the tools to ending conflicts and bringing both justice and peace to countries. Justice and peace are not incompatible, although the balance between them is not always easy. By leaving the ICC SA is asserting that in the interests of stability justice will be foregone.
Nevertheless, making peace always requires trade-offs. That may be one of the lessons from the recent experience of the Bashir issue at the ICC. As Sidiropoulos noted in June last year,
[t]he indictment of the first sitting president al-Bashir in 2009 emphasised that no-one was above the law. Yet it raised a related tension between the practical imperatives of ending a conflict and justice for the victims that would not contemplate immunity from impunity. The imperatives of a political settlement would require that such indictment be recalled in the interests of negotiating an exit from the conflict, a case that the AU and South Africa made at the time.
However, the intention of the ICC was to act as a deterrent to leaders acting with impunity. For too long, unaccountable governments have been able to hide behind sovereignty to justify their perpetration of mass atrocities. African citizens have often been the victims with very little recourse to redress.
After more than a decade of operation, the Rome Statute may well require reform, but a developing country like South Africa is virtually powerless to reform it from the outside. Rather it should have opted to harness its relative power on the continent to build coalitions from the inside to drive a reform agenda that prioritises some of the trade-offs that are necessary for peace.
South Africa should be leading the continent in resolving these seeming contradictions in the creation of an international framework that reduces impunity. For example, it could motivate for the inclusion of incentives within the Statute that allow for the suspension of indictments if meaningful efforts are being undertaken to arrive at peace. Where peace has been attained such indictments could be suspended indefinitely provided there was a truth and reconciliation process in the country/region involved. Adam Habib, writing in the Sunday Times in June last year, set out three conditions that should be pushed by African states to address the issue of double standards. First the court must not have any political or legal engagement with or take any mandate from any non-signatory nation; second, citizens of non-signatory countries may be employed by the ICC only if they formally disassociate themselves from their government’s refusal to join; and third, the court’s mandate must be extended to cover rights abuses everywhere.
The power dynamics in the world have changed from the late 1990s and early 2000s, making it even more difficult to mobilise consensus on what reforms would address the ICC’s weaknesses, including its being perceived as an instrument of imperialism. But that does not mean that States Parties should not try. By withdrawing South Africa has closed the door on leading a reform-minded coalition, and left itself open to scrutiny as an important norm creator in the region.
Softly, softly and South Africa’s soft power
The decision not to pursue a reform agenda signals a worrying shift in SA foreign policy given that it is not clear what instrument it will draw on outside of the ICC. The African Court on Justice and Human Rights is not yet operational, absent the required ratification by 15 member states. While the Court’s jurisdiction is broader than that of its predecessors, the Malabo Protocol excludes sitting heads of state or government and senior officials from its jurisdiction. So, it will not step into the ICC lacuna. Taken in conjunction with the SADC Heads of State decision in 2013 in Malawi to limit the jurisdiction of the SADC Tribunal to disputes between members states (whereas previously citizens were able to approach the court for redress of human rights violations), South Africa’s latest step suggests that it is more concerned about protecting leaders and their dignity and less about citizens and their rights. This is a significant departure from its purported values of protecting the human rights of Africa’s citizens. Ironically, Chief Justice Mogoeng Mogoeng, in the Constitutional Court ruling on whether the decisions of the SADC Tribunal were binding, in 2013, after SADC had taken the decision to disband it, emphasised the importance of a regional tribunal ‘where human rights related complaints particularly by citizens against their States’ could be taken.
While South Africa follows Burundi in announcing its intention to withdraw from the ICC, it is likely that other African leaders will follow suit. Yet, it is also worth remembering that at the AU Summit in July, Nigeria, Côte d’Ivoire, Senegal and Tunisia opposed calls for a mass withdrawal from the ICC.
However, those citizens of the continent who have suffered from the gross injustices and violence of government forces in Darfur (for example) will be disappointed that a flag bearer of human rights (given its own history of injustice and repression) has turned its back on a global body that was established to fight the impunity of the strong.
SA’s decision will be seen by many in the human rights community and other signatories not as an attempt to strengthen its obligations with respect to the peaceful resolution of disputes, but rather as an unwillingness to take a stand against fellow African leaders. The fact that the government’s announcement to withdraw was not accompanied by a clear explanation of what instruments it intended to rely on in the absence of the ICC, accompanied by the fact that it has deliberately disarmed the SADC Tribunal – further calls into question the country’s commitment to a people-centred approach to security.
Inspirational soft power drove South Africa’s standing in global forums. It was able to straddle both worlds, work towards compromise and incrementally help to improve the global rules of the game, including in fighting against oppression and for the right of every person to dignity. Unfortunately, the narrative of African sovereignty that is aimed at asserting African dignity (driven by the experience of Western colonialism) has actually become not the dignity and rights of ordinary African citizens but those of African leaders and the elite.