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28 July 2017 00:45 (South Africa)
Opinionista Oscar van Heerden

South Africa’s exit from the ICC: Justice cannot trump peace

  • Oscar van Heerden
    Oscar-van-Heerden.jpg
    Oscar van Heerden

    Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is an active fellow of the Mapungubwe Institute for Strategic Reflections (MISTRA) and is a trustee for the Kgalema Mothlante Foundation

As a scholar of international relations, I support South Africa’s withdrawal from the ICC.

At the current juncture, our thinking and argument about anything in South Africa’s takes the form of a binary code. It’s good vs. evil; Hillary vs. Trump; #feesmustfall vs. police brutality. Under threat, concerned, angered and frustrated we pick our sides and hold our positions. Our opinions spew forth in a hurricane of tweets, posts and short video clips. Its black or white with no room for grey or nuance. There is certainly little room for any dissenting views.

Take the recent announcement of our South African government to exit the Rome Statute of the International Criminal Court. The argument is clear. This is our evil Zuma government doing something...another really bad thing. I mean the ICC is for prosecuting gross human rights violations, genocides, and war crimes. I know for sure that those are prime-evil, so choosing to withdraw from the ICC must mean our government supports that kind of thing. Holy smoke. How is that possible? I just don’t get it. If anyone still talks about us going down the tubes, this waterslide is now down in a deep level mine shaft. The end is nigh!

Hold your horses. Let’s back up a little. Hold it steady and think a bit: Is this another binary code?

Matters of statecraft within the international system are a little more complex than the simple binaries of right vs. wrong; black vs. white, good vs. evil. 

As a scholar of international relations, I support South Africa’s withdrawal from the ICC. Here is why:

  • I recognise and abhor the duality that exists in the global international system to which the ICC contributes.

The ICC does not operate in isolation and is part of a global international system. International relations post-World War 2 has taken on a duality in the application of rights and responsibilities. In short, the more powerful countries (the victors of WW2) have configured global institutions in a manner that benefits them and not the rest of the world.

To illustrate, the United Nations Security Council (UNSC) is configured to have five permanent members (United States, United Kingdom, Russia, France and China) who have final say over all decision-making on global security affairs. These permanent five each hold a veto power, which they can use to stop any decision with which they don’t agree. The World Trade Organisation (WTO), the International Monitory Fund (IMF) and the World Bank (collectively referred to as the Bretton Woods Institutions) represent the same duality. They agreed that the IMF President can only come from the EU and that the head of the World Bank can only come from the USA.  But that’s another argument for another time.

A good example of how these UNSC veto powers play out is the matter of ‘rape as a weapon of war’.

During South Africa’s first tenure as a non-permanent member of the UNSC in 2006-2008, a resolution was sponsored wanting to declare rape as a weapon of war. Most parties in the UN Security Council were in support of this resolution. Except the USA, which wanted their armed forces stationed all over the world to be exempted from this crime. As a result the resolution was never passed. The shear gumption of the USA to think that they can get away with such duality was insulting in the very least.

My point here is that the ICC is an extension of that duality which is represented starkly when examining which nations are signatories to the Rome statute. It should also be born in mind that many African countries have been cajoled and ‘strongly encouraged’ to sign the statute by some of their former colonial masters and stronger trading partners. Just like they are now threatening most countries of severe consequences should they want to exit from the Rome Statute?

 Most revealing is the long list of countries, which either have never signed the statute, or after initial willingness have failed to have their membership ratified. By exiting the ICC, South Africa joins the United States of America, China, Russia, Israel, India, Pakistan to mention a few. There are 103 countries which have ratified the Rome statute however.

  • The ICC has not acted or voiced concern relating to numerous global war crimes, genocides and human rights abuses.

A layperson could be forgiven for assuming that that the ICC is a body set up to enforce international law pertaining to gross human rights violations, war crimes, genocide and that what applies to one global player will apply to all. Not so with the ICC in its current form. To the contrary the ICC only acts on cases that pertain to the signatories of the statute.

Not only does is not pursue violations that occur globally, it does not even express itself or not any concern relating to atrocities committed by non-signatories.

Let me give some examples. The ICC was silent when the United States invaded Libya and by proxy resulted in the killing of Gaddafi; it was silent when the USA and the UK invaded Iraq which led to the killing of Saddam Hussein; and to think this was done on the pretext that there was weapons of mass destruction, and no action was taken against President Bush nor Prime Minister Tony Blair, it remained silent when the United States intervened in Syria to overthrow Assad’s government by assisting rebel forces in that country.  The ICC neither acted on, nor condemned, Russia’s involvement in the Ukraine; and was similarly silent on the involvement of France in many of its former colonies in North Africa, Cote d’Ivoire, Mali, CAR to mention a few.

All of these examples have not even been mentioned by the international prosecutor of the ICC of possible relevance to its work and upholding international law as it relates to gross human rights violations. All will argue the world is well rid of the likes of Gaddafi, Saddam and others, but at what cost to their respective countries?  These countries till today remain blood baths, killing fields for its citizens; women and children cannot find peace because of these interventions by outside countries. 

I am sure any reasonable person must question the global value of the ICC. This is a court that applies its rules to some and not to others in the global arena, simply because others are non-signatories.

  • The ICC is structurally flawed and inconsistent in relation to who can bring cases to its attention

The Rome Statute makes it clear that governments of respective signatory countries are the only rightful plaintiffs at the ICC. The reasonable person may be forgiven for assuming that, as such, only governments of signatory countries are able to bring cases to the prosecutor to lay charges against one of their own. In fact, this argument is frequently used to indicate that the court is not biased towards any particular country and/or continent. The reason that the majority of cases before the ICC concern African states, is because African governments themselves have brought these charges. The ICC itself does not choose whom to prosecute; rather the respective governments of the signatory nations bring cases to them.

It is not quite so straight forward, unfortunately.

There is an important caveat in the Rome Statute that indicates that the permanent five members of the UN Security Council can also tell the court whom to charge. Remember that Russia, China and the USA are all permanent members of the UNSC, but not signatories or have not ratified membership to the ICC. In other words, non-signatory countries can instruct the ICC to prosecute others in the world. This in itself conjures up numerous legal ramifications that many jurists have been preoccupied with over the years. A select few non-signatory countries are able to influence and determine the fate of signatory countries. In other words they don’t want to be held accountable under the Rome Statute themselves, and yet they can be referee and player with the lives of others.

This was the case with the prosecution of Sudan’s Omar al-Bashir. This case was brought to the ICC by UNSC (which includes non-signatory countries). The further irony of this specific case is that Sudan is also one of the countries that have not ratified the Rome Statute. What makes this situation even more curious was that neither plaintiff nor the defendant were signatories to the statute. It was however South Africa’s failure to arrest President al-Bashir when he was present in our country, and not the obviously duality at play in the ICC which made the headlines. Notwithstanding the correct argument by our government of the contradiction that exist between two sets of legislation in this regard:  that of customary law protecting diplomats and heads of states against prosecution by means of ‘diplomatic immunity’ and the Rome Statute attempting to overriding this law.  We however shall await the outcome of the Constitutional court case in this regard here in South Africa with regards the al-Bashir matter. 

  • ICC judges are not required to have a legal background.

The make-up of the court is perhaps also of relevance when discussing the need to be or not to be a signatory. There have been many legal scholars that have taken issue with the fact that one would think an esteemed institution such as the ICC would have the best legal minds as its judges. And yet this is not always the case. Many of the judges over the years in fact have no legal background at all. Imagine our highest court in the land the constitutional court being presided over by non-legal minds?

  • I don’t believe that justice should trump peace.

In the letter that the South African government sent to Ban Ki-Moon at the United Nations, indicating its intent to withdraw, it states: “The RSA has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC.”

The clearest recent examples of attempts at peaceful resolutions, scuppered by ICC processes are the cases of Sudan and Cote d’ivoire. In both instances the South African government was intimately involved in finding lasting peace in these war torn regions.

In Sudan there was civil war between warring factions in the North and the South in which the South wanted to accede and be their own governing territory. President al-Bashir was one of the leading protagonists, and as a result a key stakeholder in the negotiations process to find a lasting solution to the killings in that region. The UN Security Council – not the government of Sudan – deemed it important and necessary to instruct the ICC to charge al-Bashir with war crimes regardless of the peace efforts underway in the region.  Needless to say, adding fuel to an already very volatile situation, one questioned the timing of such actions by the ICC and indeed the intent by some of the permanent five UNSC members.

Similarly, in Cote d’Ivoire warring factions were involved in a protracted civil war. Again, African Union efforts in general and South Africa in particular sought to broker a peace deal. However, these were undermined when following a flawed election the opposition forces to President Laurent Gbagbo, added and abetted by the French military, came to power. When they ‘won’ the election, they laid charges against the former President Gbagbo at the ICC.  All this happened whilst South Africa made a genuine request to the ICC to please consider the timing of the charges because of the sensitivity of the peace deal, but to no avail.  Charges were instituted and Gbagbo arrested. The country remains in turmoil to this day. 

Central to the South African government’s decision to withdraw is a nuanced understanding of the politics of war and retribution; and how this plays out in negotiations for peace. Peaceful resolutions are applauded the world over; but are seldom initiated by the powerful nations. Theirs is the hard-talk tough-action domain of military incursions, drone attacks, regime change and weapons of mass destruction politicking. This is a far cry from the soft power approaches of talk-about-talks, peace accords and negotiated settlements. I am happy to debate about which approach leads to better human rights outcomes for the citizens of particular countries. But I digress.

The pertinent question that must be resolved here, is which is a more effective means to reach the goal of halting carnage, killings, trauma and all associated ills of war: Negotiations for lasting peace which may require compromise from key protagonists or the exertion of justice on one or two leaders? This choice of means to a common end (of reducing war crimes, gross human rights abuses and genocides) is at the crux of South Africa’s decision to no longer be party to the ICC.

The South African ‘miracle’ of a negotiated settlement that led to a new democracy would not have been possible if we had sought to exert justice against the Apartheid regime (FW De Klerk, PW Botha, Magnus Malan, and Adrian Vlok, not to mention their henchmen). The negotiation process would have been scuppered and grossly undermined if these protagonists faced a possible ICC trial instead of a Nobel Peace Prize. We rightfully chose peace over justice in order to build a new nation free of all the associated ills of war.    

Any peace-loving South African surely must be able to see and agree given our own experience that peace surely must trump justice regardless of how evil the protagonist(s) maybe.

Choosing to withdraw from an international body is not a decision taken lightly. But when that body operates as an exclusive club and hence only holds its member nations and not others to account its functioning and purpose has to be question if outsiders can also determine what happens in the club. And if it is just the rules of the game that it can only hold its own members to account; when one member chooses to no longer be party to the club who can stop them from leaving it? Surely, not outsiders?  Our current UN system of which the UNSC and ICC are an integral part reflects a duality within the international system where rules apply to some but not to others.

The sooner we exit the ICC the better. It is time to reject the duality of the UNSC which finds expression, at least in part, through the ICC. It is now time to forge a new more equitable and fair international accountability and legal systems.   

I’m afraid it is that same duality that is finding expression in this argument about our membership to the ICC. Everyone argues who will ultimately hold governments and their leaders responsible for wicked, cruel, gross human rights abuses, if not the ICC? I ask instead the question of who will hold those governments and leaders accountable that chooses not to sign or ratify the Rome statute? DM

  • Oscar van Heerden
    Oscar-van-Heerden.jpg
    Oscar van Heerden

    Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is an active fellow of the Mapungubwe Institute for Strategic Reflections (MISTRA) and is a trustee for the Kgalema Mothlante Foundation

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