South Africa’s announcement, in October last year, that it was taking steps to withdraw from the Rome Statute, the founding treaty of the International Criminal Court (ICC), baffled many observers. The country is generally seen as a champion of human rights given its liberal constitution, the existence of strong civil society advocacy for the advancement of a variety of rights, and its history of struggle against Apartheid; the latter founded on the very violation of fundamental rights.
Things came to a head when in June 2015, South Africa faced criticism for not arresting Sudanese President, Omar al-Bashir, accused of genocide and war crimes by the ICC. Bashir was attending an African Union conference in the country.
At the time, Foreign Minister Maite Nkoana-Mashabane invoked a legal conflict between international customary law that guarantees diplomatic immunity to sitting heads of state on one hand, and South Africa’s legal obligations under the Rome Statute (to arrest al-Bashir) on the other. According to Justice Minister Michael Masutha, these obligations undermine South Africa’s ability to promote “peace, stability and dialogue [on the continent].”
The immediate cause of withdrawal may well have had to do with al-Bashir, but the problem is arguably more complex. The legal argument barely conceals a political protest against the ICC’s discriminate focus on African perpetrators of international crimes.
The ICC operates in the context of a global governance structure characterized by a problematic multilateralism, the prevalence of northern (i.e. Western European and North American) hegemony, and an implicit hierarchical moral and racial order that makes it acceptable for African leaders to be prosecuted but makes the indictment of Anglo-American leaders inconceivable.
It’s not that Africans aren’t interested in justice. For example, the African Union has been exploring ways to implement the 2014 Malabo Protocol in order to enable the African Court of Justice and Human Rights to prosecute crimes under international law and other transnational crimes including corruption, money laundering and the exploitation of natural resources. If a court based on the continent is liable to suffer from the very imbalances that fuel African resentment towards the ICC, it still constitutes a step towards a framework of self-governance that can mitigate the effects of externalities on African political processes.
In fact, the recent prosecution of Chad’s former dictator, Hissène Habré, at the Extraordinary African Chambers in Dakar, Senegal, for crimes of war is evidence that where there is political will and the adequate resources, the cause of justice can be advanced on the continent. The current conjecture is therefore far from being straightforward; it is not to oppose immunity to impunity, but rather to denounce moral hypocrisy, double-standard and racialized determinations.
African and other developing states’ initial enthusiastic support for the ICC was motivated by a desire to have a collective instrument, unhindered by a veto-system and capable of reining in even the most powerful states, to subject everybody to the same universal rules, to deliver global justice and to advance universality. Instead, the court has turned to the continent as a place of prosecutorial experimentation and this is partly what is being objected to.
The prospects are enormous, for the ICC’s capacity to help bring justice to millions of victims in Palestine, Afghanistan, Libya, Syria, and other parts of the world, but until the issue of fairness, competency, and procedural deficit are addressed, this will remain an unfulfilled possibility. Beyond the threat of an African exodus, the larger issue is that the implementation of the Rome Statute in its current form suffers from many technical deficiencies including shortcomings in the operations of the Office of the Prosecutor (OTP). There are also disagreements over Article 27 of the Rome Statute on the exclusion of immunity for heads of states. Nonetheless, until big powers such as the United States, China and Russia come on board to support the ICC mitigate these shortcomings, the court will continue to lose moral legitimacy, therefore relevance.
African states have a legitimate ground in denouncing the ICC’s disproportionate focus on African perpetrators of crimes – seen as easy targets. Of the ten countries currently being investigated by the ICC, nine are African. The fact that some of these cases were referred to the court by African states themselves does not justify current prosecutorial configurations. What this tendency also does is to perpetuate an image of African leaders as corrupt villains who prey over their populations even when the most egregious crimes have been, are being committed in Colombia, Yemen, Chechnya, Syria, and Iraq, to name a few. Most of these involve dominant powers, such as the United States, Russia, and France.
While the court cannot adjudicate on crimes perpetrated by non-member states, the fact that cases can also be referred by the UN Security Council opens up space for third-party interference. This is in fact the situation that has led to the referral of al-Bashir to the ICC by the UNSC for charges of genocide and crimes against humanity in Darfur.
There are a couple of things at issue here. Firstly, South Africa’s withdrawal has to be seen as a significant protest gesture against ICC bias against African leaders. While UNSC members are happy to make referrals to the ICC, they do not trust the same court to render justice where their state and military officials have been involved.
More crucially, 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 internalization 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.
Legal scholars often take for granted the normativity of the law and treat politics as an inferior domain that merely interferes with the pursuit of justice. However, in fighting “the most serious crimes of concern to the international community” as the founding charter has tasked the Court, it has to be recognized that extrajudicial demands have come to compromise the status, and now the future, of a needed judicial institution.
Since South Africa’s withdrawal, a number of notable developments can be seen as an attempt by the ICC to address African concerns over bias and the judicialization of African internal politics, and beyond the threat of an African exodus. In addition to Georgia and the preliminary examination in Ukraine, the ICC has recently opened an investigation into Afghanistan over possible war crimes committed by US soldiers there. This renewed interest in a case that had been on a preliminary examination for almost a decade now becomes an argument against ICC critics of an African bias. In November 2016, during the Fifteenth Session of the ICC Assembly of States Parties a special meeting was held to discuss the ICC and African states. It was recognized during the meeting that the ICC needed to pay more heed to African grievances.
At any rate, if some observers were quick to dismiss the South African withdrawal initiative as futile, it has had the benefit of reigniting an important debate on the entanglements between the production of justice and the fragilization of continental legal mechanisms, the provision of peace and order and the exercise of global governance power on African internal processes, and the requirement for a rule of law, globally, that is impartial, consistent and universal.