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.

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