South Africa

OP-ED

Trivial, shameful, desperate: The ironies in the Zuma campaign’s efforts to approach the International Criminal Court

Supporters of former president Jacob Zuma gather in Nkandla, Kwa-Zulu Natal, 4 July 2021. (Photo: EPA-EFE / Yeshiel Panchia)

On 4 August 2021, the #FreeJacobZuma campaign announced that it would approach the International Criminal Court to complain of international crimes allegedly committed by President Cyril Ramaphosa’s government. This announcement is a mockery of the ICC, its purpose and the imperative to punish those guilty of international crimes.

Max du Plessis is an advocate, Durban, and adjunct professor, Nelson Mandela University and UCT; Eshed Cohen is an advocate, Cape Town; and Hannah Woolaver is associate professor, UCT. The authors write in their personal capacities.

We are academics and practitioners of international criminal justice. We have written about and litigated before the International Criminal Court (ICC). We have advised governments, institutions and civil society groups about taking or defending cases before the ICC. We are bemused by the #FreeJacobZuma campaign’s intended approach to the ICC — it is so amateurish, so obviously political and so deeply ironic.

The ICC was established in 1998. By the late 1990s, the global community had witnessed (to name some examples) the Armenian genocide, the Holocaust, the Rwandan genocide and the brutalities of the former Yugoslavia. The establishment of the ICC was a response to the atrocities of the 20th century. The Rome Statute is the treaty establishing the ICC. To date, the Rome Statute has been ratified by 124 states. South Africa remains a party to the Statute — despite the efforts of Jacob Zuma’s administration to withdraw from it when he was president.

The ICC has jurisdiction over four types of crimes: genocide, crimes against humanity, war crimes and aggression. Generally, the ICC tries persons accused of these crimes after a state has referred a situation to the ICC. 

However, the Prosecutor is empowered to start an investigation into a situation on his or her own accord. The Prosecutor has done so, for example, into situations in Burundi, Georgia and Kenya. As part of this function, the Prosecutor can receive information from anyone, in the form of communications. The Prosecutor can decide based on these communications whether they should investigate and ultimately prosecute the persons accused of international crimes.

The Prosecutor, as one can imagine, does not decide lightly to initiate an investigation based on communications. The Prosecutor must analyse the seriousness of any information received. The Prosecutor, to this end, may seek additional information from states, organs of the United Nations, intergovernmental or non-governmental organisations or other reliable sources. After this, the Prosecutor must be satisfied that there is a reasonable basis to initiate an investigation. 

The Prosecutor must get the Court’s authorisation to initiate the investigation. The Prosecutor must show that the investigation concerns alleged crimes falling within the ICC’s jurisdiction and that the case is admissible. A case is admissible when the state in whose jurisdiction the crimes allegedly occurred declines to prosecute domestically. A case will also not be admissible when the case is of insufficient gravity to justify further action by the court.

The test is a stringent one. It reflects not only the idea that the ICC exists to prosecute only the most heinous of crimes. For example, in 2017 the Court authorised the Prosecutor’s investigation into Burundi. The Court found that there was “a reasonable basis to believe that some of [the alleged] crimes were committed against children (such as murder, rape and imprisonment) and that some crimes have been executed in a particularly cruel manner (such as torture by means of electrocution and tying of weights to genitals, as well as gang rapes)”. Accordingly, the allegations were of sufficient gravity. 

The test is stringent for another reason: to weed out serious communications from those that are clearly politically inspired, hopeless on their merits, just plain cranky or an obvious effort to deflect attention away from the real perpetrators of crime. As the Prosecutor’s report on the 2019/20 period discloses, the Office received 813 communications. Only 26 warranted further analysis. 

The #FreeJacobZuma campaign reportedly claims in its submission to the ICC that it will argue that there is prima facie evidence of “crimes of genocide, crimes against humanity and war crimes against this administration”.

There is no serious basis for these accusations. 

The violence that rocked KwaZulu-Natal and Gauteng in July was deeply unsettling. Those responsible for the relevant crimes must be tried. But to suggest that the current South African government’s officials committed international crimes reflects a deep misconception of the ICC’s role. It leaves one with no choice but to infer desperation on the part of Zuma and his supporters — as though pointing fingers at someone else will help them escape attention for their or their supporters’ alleged roles in the violence unleashed against South Africa and its people.  

The more useful international criminal law question is this: as the government inquiries unfold into the events of July, did the acts and coordinated planning reach the threshold of crimes against (South African’s) humanity in the context of attacks against civilian infrastructure, supply chains, vast economic damage and with deliberate impact on the poor? To that extent, the #FreeJacobZuma campaign has ironically and no doubt unwittingly raised the spectre of accountability for international crimes for the senior planners, plotters and perpetrators of the July violence.

There is a second, deeper irony here too. Zuma is of course no stranger to the ICC. In 2017, the ICC found that South Africa, led by Jacob Zuma, had violated its duties under the Rome Statute in failing to apprehend former President Al-Bashir of Sudan. Around that time, Zuma’s government attempted to withdraw from the ICC. The argument was that the ICC violates the immunity of heads of states and is biased against African leaders. The attempt was — as so often has been the case with Zuma — thwarted by the high court, which ruled that Zuma’s government had failed to acquire Parliament’s approval for withdrawing.

These misgivings have now evaporated for Zuma and his supporters. They even intend, according to reports of Carl Niehaus’s new strategy, to “charge” the current South African president for crimes committed during his office. Zuma’s warm embrace of the ICC, after disavowing the institution, confirms the expediency of this approach to the ICC. 

Our courts have bemoaned the Stalingrad strategy adopted by Zuma in his attempts to avoid justice at home. But it is shameful to approach a court whose jurisdiction is reserved for the world’s worst crimes and most vulnerable victims. 

The ICC should not have to waste its time on the trivial efforts dreamt up by the #FreeJacobZuma campaign. DM

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All Comments 23

  • A bigger crime against humanity will be ZUMA’s abuse of the poor and disenfranchised under his watch. The abject poverty that many still endure is due to the wholesale looting of state coffers by the Zuma/ Gupta franchise. Shame on Zuma and the whole ANC project you are responsible for heaping untold misery upon the most vulnerable.

  • A clear and concise article by experts on the workings of the ICC and the ridiculousness of the Zuma campaigners. Thank you.

  • Absolutely agree with the article. The arrogance and ignorance of the Free Zuma Campaign is mind blowing. We will await the decision of the ICC

    • The decision of the ICC prosecutor should be summarised in ONE word “dismissed” … but … for effect could add the words “without foundation” – not to be confused with the ‘JZ foundation’ for state capture !

  • Seems Zuma’s health is fine to approach the international court but too fragile for ours.

    Doubtless he will have some mystery complaint that can’t be easily verified by doctors.

  • The third from last paragraph is a comprehensive executive summary of the entire Zuma project. Expediency. It started with those who rode roughshod over his rape trial and the callous treatment of the complainant in order to thrust him into the Presidency, all the way through to the merry tea-drinkers and now those who continue to aid and abet this delinquent upholder of the Constitution.

  • As if we needed another example of the sheer, undiluted impertinence of this awful specimen of humanity. would someone please put us out of our misery, I’m not sure how much more of this we can take.

  • These ICC trials take decades!

    former prisoner Zuma should be placed in protective custody in Estonia for the duration. Out of sight out of mind

    • Estonia is too good a place to be polluted by him. He likes Russia so I’m sure there is a suitable gulag in Siberia where there is simply nowhere to escape to.

  • Here we have another example of highly educated, enlightened minds forced to waste their time to think and write about a lewd, depraved sub-culture that wrecked the lives of so many good South Africans. The authors are an example of the depth of talent South Africa has in abundance. How sad that the best of humankind is now held ransom by the worst of humankind.

  • Don’t be surprised if they get the likes of dilly Dali and/or slippery Hlope to add ‘legalese’ sauce to this parody ! Maybe even the awol CJ of our constitutional court whose final embarrassing ‘performance’ at the JSC interviews for appointments to the court … could be persuaded add his penny’s worth !

  • So you raise hell and try take over a country, using the poor as cannon fodder, then when you lose that one you try go to the ICC to get the good guys (us) tried for a crime against humanity! I cant begin to explain the irony let alone even try and understand the utter stupidity of these people. I only hope that it will somehow backfire and counter charge them for killing over 300 of their own! let alone the lost 9 years where a country has all but been stolen by the perpatrator!

  • It is pleasing to read a concise cogent argument pertaining to this particular attempt by Zuma and his supporters to deflect from any responsibility for the chaos that they have lead this fair land into.

  • Let’s keep the ICC for the REAL crimes against the South African people yet to unfold! The war has just begun…the battle lines drawn. Hold onto your hats folks, the party has just begun!
    When you have a fractured governing party fighting amongst themselves, that is the beginning. And when you have nothing but promises ( EFF) or wishful thinking ( DA) waiting to take its place….that is the end.
    The only hope we have is that the right faction of the fractured ANC wins. CR is the only hope we have. No Big Brother International support, no ICC, no magic trick will save us. Only we can save ourselves.
    In the meantime we have lots of sunshine and it’s not boring to live here. Let’s make the most of it!

  • The Prosecutor for the ICC only has to peruse a dozen or so appropriate DM articles, easily found, read them, have a chuckle and then carry on with important matters. The #FreeJacobZuma cabal would be good only for a laugh if not for the fact that they (and by extension the ANC) have themselves been responsible for two of the four transgressions identified by the ICC, crimes against humanity and aggression towards our own poor and hopeless/helpless majority.

  • Will someone (like the authors of this article) that there are serious financial and professional risks with wasting the ICC’s time with this patent nonsense. Dismissed with hefty costs in Euros for the pathetic lawyers and then disciplinary charges from the legal profession. Please oh pretty please?

  • President Gbagbo of Ivory Coast has recently been released after court case because of not handing over power after a “good” election coupled with the usual violence. Very nasty events happened and ex Ivorian colleagues of mine had homes trashed and lots of deaths. I was away the year before and could see it coming. Compared to this Cyril squeaky clean. It was the constitutional court that ruled on JZ not Cyril.