Lowering the flag: The ANC and the ICC

By Saul Musker 12 October 2015

Oped Bapela, chairperson of the African National Congress’s international relations sub-committee, announced on Sunday that the party would seek a departure from the Rome Statute and the International Criminal Court. At the same time, he assured the country that “South Africa still holds the flag of human rights, we are not lowering it, we will continuously hold it high”. He wants to both have his cake and eat it; unfortunately, he can’t. By SAUL MUSKER.

When the Rome Statute was adopted in July 1998, only seven countries voted against it: China, Iraq, Israel, Libya, Qatar, the US and Yemen. At the time, these were arguably the seven worst human rights abusers in the world. It is not difficult to understand why the statute generated relative unanimity amongst the states gathered in Rome; the preamble begins with a reminder that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity”, and declares that the world must “put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes”. These are difficult things to disagree with.

The overwhelming moral persuasiveness of the Rome Statute, its purpose and its principles makes the act of withdrawing from it rather conspicuous. In an apparent acknowledgement of this, the African National Congress (ANC) was careful to reiterate its support for the International Criminal Court (ICC) in principle: “The principles that led us to be members [of the ICC] remain valid and relevant … however, the ICC has lost its direction and is no longer pursuing that principle”.

Let us take the party at its word for a moment, and presume that it fully supports the aims and values of international justice, wishes to end impunity for genocide, war crimes and crimes against humanity, and sees nothing wrong (in principle) with an international instrument charged with doing so. What then, could be its reason for leaving the Rome Statute – for believing that “the ICC has lost its direction”?

The ANC’s most likely argument is that the ICC has “unfairly targeted African leaders”, applying selective justice in fulfilling its mandate. This charge, while often made, is without basis. To date, of the eight cases the ICC has pursued in Africa thus far, two have been referred to the court by the United Nations (UN) Security Council (Sudan and Libya), and four have been self-referrals, in which the state involved actually requests the assistance of the court (the Democratic Republic of Congo, the Central African Republic, Uganda and Mali). This leaves only two cases (Kenya and Côte d’Ivoire) which the prosecutor initiated independently, on what is called a proprio motu basis. Some vendetta that must be.

Why, though, has the ICC not pursued cases elsewhere, in other continents? Here, there are three points to be made: one, the court is currently investigating situations in Afghanistan, Colombia, Georgia, Honduras, Iraq, Palestine and the Ukraine. Two, up until now, most incidents of those crimes that fall under the court’s jurisdiction have occurred either in African states or in states that have not ratified the Rome Statute. Such is the environment in which the court operates, and such are its restrictions. Third, at best, this would be an argument for extending the reach of the court, not withdrawing from its jurisdiction. Even if its premise was true, the argument would plainly be a non sequitur.

It is telling, of course, that no proponent of withdrawal has ever actually argued that any of the eight situations currently before the ICC is not deserving of prosecution in and of itself. This is the great tragedy of South Africa’s new stance: the victims of real atrocities in Uganda, in the Central African Republic, in Mali and elsewhere are forgotten, brushed aside by rhetoric and political posturing. Moreover, nobody has provided any evidence that the structures of the ICC, as stipulated by the Rome Statute, allow for abuse or manipulation. The statute commits the court, which is presided over by a diverse panel of international justices appointed by a two-thirds majority of the Assembly of State Parties (of which South Africa is a member), to the principles of fairness and due process, as would be applied in any legitimate court. There are three separate stages to every prosecution: first, a pre-trial chamber of three justices must evaluate the prosecutor’s evidence and determine whether it is sufficient to allow for the issuing of an arrest warrant. This means the prosecutor cannot simply haul any person to trial on a whim or fancy; in the case of Callixte Mbarushimana, for example, the leader of the Democratic Forces for the Liberation of Rwanda, a pre-trial chamber dismissed the charges and halted proceedings. Should sufficient evidence exist, a trial takes place in which the accused must have access to their full rights. Whatever the outcome, an appeals chamber can adjudicate challenges to the court’s verdict. Also, article 46 of the statute provides advanced accountability mechanisms for the offices of the justices and the prosecutor. In short, this is probably the most sophisticated and fair judicial structure of any in the world.

There are other arguments to be made in the court’s favour. Article 17 of the statute enshrines the principle of complementarity, which guarantees that the court will only intervene in situations where the state in question is unable or unwilling to do so itself. Article 75 allows for orders relating to restitution, compensation and rehabilitation, giving the court a mandate that goes beyond purely retributive justice. All of these important benefits of the court were ignored in the ANC’s summary decision. It is increasingly clear, in fact, that the people behind this decision have not actually read the statute or studied the court’s history; if they had, their justification would not be so thin, so totally incoherent.

It is impossible to deny, of course, that the ICC has not been as effective as it should be. The institution lacks meaningful enforcement capacity, and has been hamstrung by the reluctance of many states to cooperate with its investigations and comply with its arrest warrants. But this is not a reason to leave the jurisdiction of the court. In the absence of any compelling evidence to suggest actual malice on the part of the ICC, and without any reason to believe that the existence of the statute has done more harm than good in the pursuit of human rights, there can no credible argument for withdrawal.

Finally, putting all other arguments aside, the decision does not even make sense in pursuit of our national interest. Should South Africa withdraw from the Rome Statute, a mass exodus of African states will likely follow, and the foundations of the court will crumble. Not only will this set back the pursuit of meaningful international justice by decades, it will seriously tarnish South Africa’s global reputation as a proponent of human rights and a moral authority in the world, significantly reducing our political capital. Our prominence in a variety of international institutions relies on this reputation, as does our bid for permanent status at the UN Security Council. Ultimately, ANC spokespeople can whine as much as they want about their continued commitment to human rights, but the world will not care. The world will see us join the ranks of those states that have forsaken the most vulnerable victims of atrocity for short-term political gain. And that is remarkable for a country so young, and with such promise. DM

Photo: A beaming Omar al-Bashir (C), President of Sudan, surrounded by security greets cheering supporters as he returns from South Africa to Khartoum, Sudan, 15 June 2015. EPA/MARWAN ALI.


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