Why is South Africa withdrawing from the International Criminal Court? And why now?

Last Friday, South Africa stunned the world when it announced it has officially initiated the process of withdrawing from the International Criminal Court (ICC).  The idea of a mass pullout of African states from the Court has been hanging in the air for a few years now.  The main point of contention has been the perceived bias of the Court which has made Africa front and center of its work. To date, all the ICC investigations are located on the African continent and all the individuals indicted by the Court are Africans.

There is one exception to the ICC’s apparent targeting of African perpetrators of atrocity crimes: an ICC investigation that opened earlier this year into war crimes committed between 1 July and 10 October 2008 during Georgia’s attempts to control a breakaway region. But that’s one exception.

Although the African Union has been critical of the ICC and has called on its members not to cooperate with the Court until these issues are resolved, it has stopped short of endorsing a collective withdrawal.

No state had formally taken the steps to withdraw from the Court, until now. All it takes to withdraw from the court is to send a letter to UN Secretary General Ban Ki-moon, and the withdrawal takes effect a year later. Given how easy this is, some African states’ threats to leave the court over the years were viewed by many observers as empty rhetoric.

But all eyes had been on Burundi lately, whose president just signed a decree to leave the ICC.  As far as we know, he has not notified Ban Ki-moon yet. Burundi’s steps to withdraw from the ICC comes after the ICC Prosecutor announced last April that she would initiate a preliminary examination of the situation there in which political violence (largely caused by the President’s decision to defy the constitution and run for a third term) has killed hundreds of people.

Burundi, a small central African state, however, is not South Africa, one of the most powerful states on the continent.

In its Instrument of Withdrawal sent to the UN Secretary General, South Africa’s foreign minister argues her country’s commitment to peaceful resolution of conflicts is “incompatible” with the Court’s interpretation of states’ obligations under the Rome Statue.

But one may ask, why South Africa? And why now?

South Africa’s withdrawal comes on the heels of the controversy that surrounded its failure to arrest the ICC-wanted President Omar al Bashir last year when he attended an AU summit there. South African civil society groups have taken President Jacob Zuma’s government to court over the issue.  Given that the Rome Statute had been domesticated in South Africa’s national laws, the Supreme Court of Appeals ruled that the government had violated national laws and its international obligations for not having arrested Bashir and surrendered him to the ICC.  The government’s claim that Bashir was protected by sovereign immunity under international customary law did not stand.

It is likely that the South African government will run into trouble at home again, because as Justice Richard Goldstone argues the move to withdraw from the ICC may be illegal because the executive branch did not allow the parliament to vote on the issue. But this will likely have no bearing over the effectiveness of South Africa leaving the ICC.

So, now what?

South Africa’s leaving the ICC may have a domino effect, the extent to which is unknown at this point. Africa constitutes the largest regional bloc in the Court’s membership. Without a doubt, African states pulling out will be a major blow to the project of ‘ending impunity’ for atrocity crimes, which is the primary goal of the ICC, as stated in the preamble of the Rome Statute. Now all eyes are on Kenya, Uganda, and Namibia, which could very well be the next states to jump off the ICC wagon.

It is evident that the most powerful states – and their clients – in the world are outside of the reach of the ICC. (In fact, the United States is not even a member. Neither are China and Russia). And for the court to be truly international and legitimate, it must be an institution where the rule of law applies equally to all individuals and states.  On the other hand, however, we should not fall for the simplistic narrative of the Court unfairly targeting Africans.  In fact, the ICC is involved in many African states only because those states have specifically requested an ICC’s intervention: Uganda, the Democratic Republic of Congo, Central African Republic (twice), Côte d’Ivoire, Mali, and just last month, Gabon. The fact that some African states have viewed the Court as a useful instrument to dispose of rebels or political opponents should not simply be swept under the rug.

Oumar Ba

Oumar Ba, originally from Senegal, is a contributing editor at Africa is a Country and a doctoral candidate in Political Science at the University of Florida.

40 Comments
  1. SA seems to think there is bias. I think of it as a necessary cleansing. SA should ignore the thought of bias and think of the ICC as an instrument to bring some sort of justice to thousands of fellow Africans who have been brutalised by their leaders.
    If Europe and the Americas don’t want to hunt down their criminals then so be it. However, we Africans should hunt down ours with a vengeance. Pulling out let’s people with blood on their hands escape justice.

    1. to date, no crime comes close, as far as brutalizing fellow Africans is concerned, as apartheid, which is a system that continues to this day and its ill gotten wealth continues to protect and serve a minority elite while further marginalizing the majority and the victims of its brutality. That is the mother of all bias, imo.

      1. You conveniently failed to mention the brutal dictators that instigated the Rwanda massacre. Almost a million Africans slaughtered. Talking about ill gotten wealth. How about Mugabe and the other tin pot dictators that rule various African countries. Have you seen the wealth they stole from Africa’s working class.

          1. Yes Africans continue to kill each and the rest of the world does not care. Why should they. In the meantime carry on killing each other lol. If africans leave the ICC they should be welcome, because they would be making no financial contribution. Just parasites.

            1. Finally, the hate in your heart comes out! Could have saved us time and space by spewing this garbage at the go instead of pretending to be a human being looking to engage in debate..

              1. Just keep killing each other. Even the African Americans don’t care. They just glad they don’t live there anymore lol lol

        1. Mugabe doesn’t come close to the savage and sophisticated evilness of the Rhodesian settlers, who contaminated the areas inhabited by Indigenous Zimbabweans with Anthrax and who regularly tortured and murdered captured resistance fighters in violation of International Conventions on War and the treatment of prisoners of war!

          On the legality of prosecution of the Rhodesian war criminals, please read the conclusion of this paper:
          http://mckinneylaw.iu.edu/IICLR/pdf/vol13p447.pdf

          Additional material:
          http://www.biorxiv.org/content/early/2016/05/17/053769
          http://jrossbaughman.blogspot.de/2009/12/discussing-ethics.html
          https://iconicphotos.wordpress.com/2012/03/15/j-ross-baughman-rhodesia/
          http://www.herald.co.zw/chibondo-zimbabwes-own-golgotha/
          http://www.tandfonline.com/doi/abs/10.1080/0143659022000036595
          http://www.herald.co.zw/849-reasons-why-rhodesia-was-so-evil/
          http://www.ippnw.org/pdf/mgs/psr-2-4-nass.pdf

          1. Spoken like a true culturally marxist. In the meantime the tinpot dictators carry on raping. Good luck to them lol

  2. I wonder why the ICC never prosecutes Colonialist or Apartheid criminals,
    such as the people responsible for the deeds of the Koevoet death
    squad, for the Cassinga massacre or the Rhodesian forces behind the
    Anthrax attack on indigenous Zimbabweans in the late 1970s? Is there a
    specific reason for the ICCs reluctance to prosecute such cases?

    1. This crime took place decades ago. If that is what you want how about Idi Amin, Mobutu, Emperor Bokassa, etc

      1. You don’t get it, I doubt you ever will! Nobody will shed a tear for amin, mobutu and others; opening cases on them all is not a problem so long as cases are also open on apartheid atrocities, colonialism crimes: take for instance the Herero people of Namibia; the gross human rights abuses inflicted on them by colonialists are worse than holocaust crimes according to recent research studies.

          1. I suggest S.Africa should follow Zimbabwe and create a socialist utopia. Look at how well Zimbabwe is doing for itself lol

            1. In fact: Zimbabwe did the same mistake of not properly prosecuting former war criminals of the Rhodesian Terrorist Regime and not instigating a proper land reform. This is exactly what led to the dissatisfaction of the population and the unfortunate events that followed. The need of the people for justice and economic participation was not addressed priorly – with the land still in the hands of the former colonialist and the war criminals not prosecuted – leading to a violent escalation of the situation. In order to prevent this, the SA government should take it’s responsibility serious and cater to it’s citizens who were victimised and disenfranchised priorly.

        1. I think the dictators in Rwanda did very well, because the extreme left and cultural marxist keep making excuses for them. May be next time they should kill 10 million because people like you would always make excuses for them.

      2. There is typically no statute of limitation for murder and war crimes. Some Nazi criminals have been prosecuted 60 or even 70 years after they have committed their crimes. You seem to be biased in favour of impunity for white war criminals – just like the ICC.

        1. Thank god for reagan and thatcher. They ended communism and there is nothing you can do to change history. You seemed biased in favour of impunity for black dictators and extreme left wing dictators.

          1. Following your trail of demagogy in various comment sections, it become obvious that you are just a racist bigot and tinfoil hat wearing wannabe historian, who needs to provoke us “cultural marxists” in order to facilitate at least some sort of human interaction in his life. Gibson, try to find a purpose in life. Your brainless palaver is not very impressive to say the least and you will not find fulfilment this way. Start by brushing your teeth, get some proper attire and stop spending whole nights with internet porn and troll-commenting.

            1. How can i be a bigot when i have foreign friends. Its you that needs to get a life by having time to follow my comments. At the end of the day the West successfully put at end to global communism and the spread of marxism. Even the Asians have no time for the extreme left and AFRICAN CULTURAL MARXISM. You are a bunch of losers lol

              1. Bigotry is not related to having / not having foreign friends. Even your beloved white supremacist Apartheid Regime had foreign allies and friends: the white Rhodesians, the Salazar-Era Portuguese colonialists in Angola and Mozambique and business partners in Western Europe and USA. I’m not a Socialist / Communist, though I have to admit that I favour Social Democracy (think Olof Palme) over murderous Apartheid Fascism at any time. Your beloved Apartheid Regime is based on the disenfranchisement of the majority of it’s population and it’s exploitation by a few racially defined persons, enforced by terrorist measures such as death squads and routine torture and murder of oppositional activists. Social Democracy on the other hand managed to cater to the whole population, built a modern infrastructure, guarantee social benefits for those in need, create jobs and employ nearly the whole population – without having to resort to violence. Are you trying to say that Apartheid South Africa was a better country to live in for it’s average citizen (a black South African) than 1970s Sweden or Norway was?

                1. Why not waste your time in trying to promote social democracy across Africa. Do you seriously think people like Mugabe would go for it. As for S.Africa never lived there, nevermind defend apartheid. Talking about terrorist measures try living in modern day Zimbabwe, Somalia, Eritrea, Congo, Sudan,etc, In your eyes all these countries are socialist paradises lol

  3. The ICC got itself into this mess by losing its credibility despite its soaring rhetoric. It lays itself open to criticism and failure when it allows the US, Britain and the NATO nations including its leaders to commit crimes against humanity and crimes of hatred and violence unchecked, un-remarked on and unprosecuted. Abu Ghraib, Libya, the invasion of Iraq, the looting of the cultural artefacts of Baghdad by well known western art thieves….if the ICC becomes a body that nations leave, it is because they have made themselves that way. Justice and Truth has no loyalty to nation or political orientation. But the ICC failed to act according to its grand mandate. When the Kenya criminals against humanity brought in an arsenal of excellent legal representation and global perception management machinery the ICC was unprepared. They had made assumptions about the sophistication of certain African countries. They failed themselves. Bring Tony Blair and the Blackwater contractors in for trial and the world will take notice.

  4. The world adores Africans who forgive crimes against humanity committed against Afrika by non Afrikans, the world is so in love with Africans that not only refuse to forgive Afrikan criminals but go on a crusade to arrest and prosecute Afrikan criminals. So, it is no surprise that Africans lead the pack in signing up to be the world’s snitch No.1 against Afrikans – to please the man!

    1. But would it not be to the ordinary Afrikan’s advantage that they who commit crimes against ordinary Afrikans are pursued whether they are Afrikan heads of state or not?

      1. Imagine, you have 2 kids; one breaks a large expensive vase on purpose then receives hugs and forgiveness from you, the other accidentally breaks an egg and gets the rod! Shielding the one facing a savage beating is not crusading against justice, especially when the one who broke the vase is on a rampage breaking every other breakable thing in the house!

        1. But if there is nothing you can do to stop the first kid from breaking stuff then forgiving it will be to your best interests(The USA is not a member of the ICC so we cant charge them and they one of the most sophisticated armies so retaliation wouldn’t end well either). However if there is something you can do to whip the second child in line then by all means you should

      2. It is also important to acknowledge if crimes against ordinary Africans were genuinely pursued without discrimination, many widely regarded as saints, business leaders, philanthropists and heroes will be in line for prosecution – but that can’t happen because most of the criminals in question are out of the jurisdiction of the courts that prosecute crimes against humanity while those within the reach of the ICC are protected by the constitutions of their countries, the very countries signed up to the courts that could otherwise have prosecuted them.

        1. None of these crimes against Africans would have happened without the consent and assistance of some African heads of states, and yes there is nothing we can do (at the moment) to prosecute the so called “philanthropists” and “heroes”

          1. There is something we can do, actually. Reject the ICC and create a truly international court where all men are equal under the law. Before 1994, the real heroes rejected the idea that ‘there is nothing we can do about’ a flawed and unjust system. Today, citizens of the world can take on the hypocrisy of the so called ICC, not to protect African dictators but to ensure every person committing crimes against humanity is judged under the same law.

            1. Our current African heads of state can hardly hold each other accountable through a recognised legitimate platform which is the African Union, how will we call the rest of the planet to account?

              The real heroes of pre-1994 had fought numerous wars with the european settlers and won in some cases when the technology gap was irrelevant, now however there is no single african state that can muster an army to stand up against the likes of NATO or even Israel because of the massive technology gaps

              1. AU, like UN and ICC, is a new way to maintain the status quo! Probably the best way moving forward is to reject all these so called governing bodies, so called governments and so called law enforcement. One thing is clear as day: the way the world works, the rich get richer, the poor get poorer and the authorities protect and sustain this inequality all over the world.

                The most powerful nation in the world got its arse kicked at one
                time by a bunch of goat herders in the mountains of Afghanistan and
                another time by Somali warlords in the poorest nation in Africa –
                technology is never a factor!

                1. I disagree, we do need a central government to maintain the rule of law, however the government should be structured in such a way as the can be no way those in power can benefit financially from being in power (which is why we have institutions like the NPA, public protector, constitutional court etc). The rich only get richer because we as the people do not support the crucial institutions that should hold those in power to account (like the ICC) to avoid the use of political power for personal financial gain. Furthermore if we do not have a central government in power it will be easier for the multinationals to exploit our resources (although I will concede they are exploiting them already, but it could be worse). I think the best way forward is if we as the general population get as many different political parties into parliament as possible. There are many countries that have succeeded through following the democratic process (Botswana, South Korea, New Zealand etc) but I believe its only because they could hold their leaders to account to avoid a situation where they could financially benefit from being in power.

                  The Somalians and Taliban might have won some fights against the US, but they lost the war, Americans arent the ones displaced from their homes and lands or dying from starvation or enduring xenophobic attacks from their brothers or dodging missiles from unmanned aircraft. One could even suspect these western countries are allowing these wars to go on for as long as possible because the same Taliban and Somalian warlords do not have the means of producing ammunition and firearms by themselves.

      1. there is a lot of caring in the western world right now because Afrika wants to leave, in case you did not notice.

  5. To simplify this: one group of people has a problem with the idea of crimes against humanity laws applying selectively therefore acknowledging the system is flawed and must be rejected while another group acknowledges the same but proposes not to reject the system for reasons that there is no way to fix it. Another reason for not rejecting a flawed and biased system is that victims of lawlessness will suffer if the system is rejected: all this while the worst crimes against humanity is playing out right before our eyes in the Middle East, refugees fleeing from wars are dying everyday. But those victims’ suffering is not reason enough to reject the ICC and propose a new court that nobody is exempt from prosecution? And the suffering of people in some little dictatorship in Africa is a good enough reason to maintain a flawed and biased system? It is possible to be for justice and to be against a flawed system at the same time. Because I support Africa pulling out of ICC don’t mean I endorse African dictatorships.

  6. As an additional tier of government, the ICC is an unwelcome player on the world stage, for all those who understand that government is obsolete and insurance is it’s future upgrade. In the future world where insurance policies will limit your freedom with your contractual consent, if you don’t agree with a particular court, you shop for a policy that does not rely on the work of the court which you perceive to be partial or biased.
    Biased providers of justice will lose customers and fold in favor of better arbiters.
    The United States and all other states can be prosecuted as thieves because we have clear evidence. Taxation is theft, all states I have information about are stealing, why do we need evidence of other crimes to pronounce that any given state and it’s functionaries are criminals?