South Africa’s complicated commitment to the ICC

South Africa’s relationship with the International Criminal Court (ICC) is tenuous, complicated by the political landscape and economic challenges facing the Southern African nation. 

Recently, the President Jacob Zuma boldly announced his intention to propose that South Africa withdraw its membership from the International Criminal Court. This shocked many supporters who admire the nation’s leadership in constitutional commitments and human rights issues.

South Africa is a ratified member of the Rome Statute the treaty of the Court. South Africa is one of the founding members of the International Court and the move to criticise the Court is viewed as another initiative that further undermines South Africa’s leadership’s application of democratic principles and adherence to governance and rule of law. South Africa is an important example of law, justice and rights in a continent where other nations struggle to maintain these standards in the wake of conflict and upheaval.

Zuma’s belief is that the Court unfairly targets African leaders for prosecution while shying away from indicting Western and European leaders who have committed similar violations. South Africa is not alone in this belief. Many African nations (Burundi, Gambia and others) have criticised the ICC as having a negative bias towards Africa, overshadowing its clear judicial aims and pushing a political agenda instead of impartially investigating those who are alleged to have committed war crimes, crimes against humanity and genocide.

Last October 2015, Zuma hosted Sudan’s, Omar al-Bashir, ignoring a court order to arrest the President of the Republic of Sudan. South Africa faces enormous global criticism for not meeting its obligations that are to implement court orders issued by the ICC, even arrest orders. The African National Congress (ANC), feels that the ICC has lost its direction by allowing powerful nations to trample human rights while holding weaker nations fully accountable to international standards of criminality.

The ICC has 124 member states, 34 are African nations. Burundi has already announced that it will withdraw its membership from the ICC, South Africa has followed suit and it is anticipated that other African nations may announce their withdrawal soon. The African Union (AU), the regional body that comprises 54 African member states has made it clear that they disagree with the requirement by the ICC, should not apply to sitting heads of state who are travelling on state business, as they qualify for diplomatic immunity in that situation.

The facts seem to bear out the claims being made by African leaders, that is, all current ongoing prosecutions are against Africans. While other leaders being investigated, specifically the leaders in Colombia and Afghanistan, no indictments have been issued to date. What is still not clear, however, is whether that is the real reason for the announcement is its dissatisfaction with the World Court.

It is no secret that Jacob Zuma is facing criticism from human rights organisations and so in reaction to this, felt it best to withdraw from the ICC, rather than undergo scrutiny from the Court. Issues such as police brutality and lack of respect for citizen rights by security forces in South Africa are seen to be on the rise. If the withdrawal takes place unilaterally, driven by the Office of the President, it is likely to face a challenge on the grounds of constitutionality, since action taken without parliamentary approval, is considered to be unconstitutional as it fails to meet the standards under South Africa’s constitution.

What is interesting about these announcements by African nations is that it highlights inconsistencies in the Court’s priorities in terms of investigations. Gambia, for example, has been raising the issue that the ICC should be investigating the European Union’s for its policy of not rescuing migrants off their shores or British and US invasion of Iraq and the ensuing deaths of civilians as potential violations.

It is tragic to see that South Africa might be on a new path, one away from the principles that activists, academic and artists fought and died for in South Africa and towards one of autocracy and disrespect. Within the ANC and among the political and social thinkers, there is disagreement about whether this move is the right one for the nation, but If this initiative goes forward, as of October 19, 2017, one year after the Secretary-General of the United Nations was notified of its intention to withdraw, the nation known as a democratic beacon in Africa, will be known also as one who shied away from its international obligations to defending human rights and justice.

Jasteena is a Professor of Law at Humber College and at the University of Windsor's Faculty of Law teaching law and international law, focusing on Human Rights, Development, Transnational and Business law. Jasteena has worked in conflict, post-conflict and transitional countries and regions on justice and human rights issues. In South Africa she has worked on children's rights and the constitutional drafting process and has continued to work internationally on legal and development and human rights issues in conflict, post-conflict and transitional crisis areas around the world, including in Afghanistan, Southern Sudan, Iraq, Sri Lanka, Indonesia, Bosnia, Croatia, Occupied Palestinian Territory in international non-governmental organizations, the United Nations and North Atlantic Treaty Organization. She was a Fellow at Harvard's Kennedy School's Carr Centre for Human Rights in the State –Building and Human Rights for Afghanistan/Pakistan program and has written extensively about her experiences and work on global issues.

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