At times the governing party of South Africa, the African National Congress (ANC), has found itself too idealistic and has had to return to a default state of pragmatism. South Africa's membership of the International Criminal Court (ICC), and the Rome Statute which formed the court, became untenable when the US in particular reneged on signing the treaty at the last minute. Nonetheless, South Africa continued its membership, relying on periodic review processes that seek to amend and update the manner in which the court functions. None of the South African government's proposals to make the court more representative and responsive to the continent's multilateral African Union (AU) were adopted.
As the US holds the position of being the global superpower both in terms of wealth and military power, the world at large would have been better served had the US shown better leadership on the issue of the ICC. Instead the ICC has been seen by many as an instrument or tool of the US to further its narrow global hegemonic political interests, and even to effect its policy on regime changes through the ICC itself. This made this court unequal and inequitable in every sense.
Although the US did eventually sign up to the ICC days before the December 2000 deadline, it has since become clear why it eventually signed then – it wanted to ensure it would be a state party that could participate in making decisions on how the court works. It achieved this by getting the United Nations (UN) Security Council power over the court. The UN Security Council is a political organ yet it has a say on who can or cannot be prosecuted by the court, which is suppose to be neutral in form and practice.
When then US president George W Bush was about to launch wars in Iraq and Afghanistan his legal counsel urged him to first withdraw from the ICC, which he did with speed coupled with declaring the UN irrelevant to America's national interests.
By May 2002, the Bush administration had “withdrawn” from the Rome Statute, and the US threatened to use military force if US nationals were held at The Hague.
In building up the "coalition of the willing", Bush devised a policy of "either with us or against us" – even direct pleas not to pursue this strategy from Nelson Mandela fell on deaf ears. The US continued to pressure its coalition parties to sign agreements not to surrender US citizens to The Hague.
Such events and many others including the fact that three of the UN Security Council permanent members are not ICC party states made the continued membership of the ICC by an ANC-led government untenable.
There is a subculture in global politics that say some are equal but not equal to others, a 'holy cow' culture in which the US and other human rights violators are untouchable yet African nations are subjected to the rule of these 'holy cows'.
At some point, South Africa's ruling party had to ask itself how best to lead Africa on the issue of the ICC as African states had registered strong objections en masse over several matters that made the court appear to be solely focused on Africa, making it an African matters court in Europe run by nations which do not subject themselves to the same court. A new form of grand supremacy and colonisation of a special kind. The African justice system and structure are seen as having been colonised in the 21st century, thus the ICC failed to transcend from the master-subject paradigm, irking sovereign-conscious nations which know very well what colonialisation looks like.
With South Africa's former presidents Mandela and Thabo Mbeki having bitterly argued that the court should change and transform, it came as no surprise when the ANC NGC instructed its party in government to start the processes to withdraw from the ICC. In explaining the matter further, President Jacob Zuma explained that South Africa opposed the manner in which the court has conducted itself for being dangerous to nation building during crises and not conducive to peace building – as in the case of Sudanese President Omar Al-Bashir, whose arrest warrant was issued on the eve of a peace deal in which Al-Bashir was instrumental.
To understand Zuma's argument we must place the ICC in the South African context, where human rights violators during the apartheid regime who were charged with crimes against humanity by the UN were only asked to face the Truth and Reconciliation Commission and not criminal courts as this was seen as the best way for the country to move forward and heal. We must then imagine an ICC that issues arrest warrants for former president FW de Klerk, his Cabinet and entire apartheid security services.
The ANC's being sympathetic to the Palestinian cause also made the matter easier to conclude as Israel, according to Zuma, "continuously breaks international law and human rights backed by US UN Security Council veto blocking action against her".
The ANC being an anti-supremacy, anti-racism, anti-uni-polar formation, it should not have been a surprise to see this decision which will embolden most nations to follow suit, especially as South Africa is the current chair of the Group of 77 and China, which seeks to form a bloc of non-aligned progressive nations in the 195 UN nations.
The ANC's answer to the ICC is that an African court that should be strengthened. The NGC was at pains to emphasise the notion that African problems need African solutions – "nothing about us without us". The finer details of the NGC resolution include that all African matters before the ICC should, without exception be referred to the African court. The ANC government was thus instructed by its "grassroots stakeholders" to stop the kick-the-can paradigm over ICC issues and "unsign" from it.
The party states to the Rome Statutes will be meeting in a regular meeting this November and will have to discuss the issues the AU has already put forward, particularly that of being against any sanctions targeting sitting heads of states, a move that failed as the ICC continued to move against Kenyan President Uhuru Kenyatta, although the charges were later dropped. South Africa has an item on the agenda dealing with the request for a review of diplomatic immunity issues for heads of states. South Africa will participate in the November meeting.
Africa has 34 ICC members. The African nations, reasonably frustrated, continue to ask reasonable questions: Why is the court solely focused on Africa? Why is the AU ignored by the court? why is the court blind to the notion that peace is a human right and that justice must recognise this?
The question should not be why is South Africa "unsigning" but why the ICC has allowed itself to be a global political tool.
The next showdown to come will be the Group of 77 and China demanding the immediate transformation of the UN Security Council itself. It remains tragic that superpowers see nothing wrong with a Security Council that has no southern continental area representation. That alone is against the human rights of more than 4-billion people. An untransformed, non-representative UN Security Council means a non-responsive ICC. DM
Bongani Mbindwane was an invited observer at the 4th ANC NGC held in Midrand, Johannesburg South Africa.