Joel Netshitenzhe, a member of the ANC’s National Executive Committee, often makes this point; “That South Africa is a noisy republic is a trait of which we should be proud”. However, as is wont of noisy places and people, one would be hard-pressed to find substance and quality debate, and South Africa is no different.
The debate around the South African government’s withdrawal from the International Criminal Court (ICC) has generated as much “noise” as the crisis in Higher Education. The reality though is that an opportunity is being lost for constructive and critical engagement around these vitally important issues.
There is no doubt that both sides of the argument regarding the South African government’s decisions to withdraw from the ICC are worth engaging. Those in support of the country remaining a signatory to the Rome Statute raise valid and cogent arguments about what they see as entrenching a culture of impunity that has taken root over decades around the continent. This argument is backed, correctly, by the continent’s history of producing rent-seeking despots that perpetuated atrocities that many of us in South Africa cannot even begin to imagine.
The idea of a structure such as the ICC gives Africans hope of an Africa free from such characters and one capable of delivering justice to its people. Hence, South Africa’s withdrawal from the ICC is viewed as a profound injustice not just towards South Africans, but to all Africans, This argument is premised on the assumption that only the ICC has the necessary capacity to prosecute leaders who violate human rights.
However, it is worth pondering what economist and Nobel Laureate, Amartya Sen, says in his book, The Idea of Justice. He argues, “A sense of injustice could serve as a signal that moves us, but a signal does demand critical examination, and there has to be some scrutiny of the soundness of a conclusion based mainly on signals… We also have to ask what kind of reasoning should count in the assessment of ethical and political concepts such as justice and injustice. In what way can a diagnosis of injustice, or identification of what would reduce or eliminate it, be objective? Does this demand impartiality in some particular sense, such as detachment from one’s own vested interests? Does it also demand re-examination of some attitudes even if they are not related to vested interests, but reflect local preconceptions and prejudices, which may not survive reasoned confrontation with others not restricted by the same parochialism? What is the role of rationality and of reasonableness in understanding the demands of justice?”
The contrary argument in support of South Africa’s blanket withdrawal from the ICC posits that there is overwhelming evidence that only Africans are being targeted for prosecution with a particular obsession on hounding out African Heads of State. These arguments are not without merit especially taking into account Millius Palayiwa’s seminal paper, Prosecuting Presidents: The Challenges of International Indictments of African Leaders. Palayiwa states that, “By October 2009, the Prosecutor had received 2,889 communications about alleged war crimes and crimes against humanity in at least 139 countries and yet by March 2009, the Prosecutor had opened investigations into 15 cases in 7 situations: Uganda, the Democratic Republic of Congo, the Central African Republic, Sudan/Darfur, Libya and is investigating the situations in Kenya and Cote d’Ivoire”.
We know that the cases against the current Kenyan President Uhuru Kenyatta and his Vice-President, William Rutto, have since been withdrawn while former Ivorian President Laurent Gbagbo is still at The Hague, five years later, without a trial.
In this context, supporters of South Africa’s withdrawal have a strong case that powerful countries use the ICC as a tool to force Africa’s leadership to toe the line to serve their geopolitical interests. This argument is also supported by the fact that even though the permanent members of the United Nations Security Council are not signatories to the Rome Statute, they have unfettered power to refer cases to the ICC while not being willing to subject themselves to the same court. To further illustrate the inconsistency, the Republic of Sudan is not signatory to the Rome Statute and yet the ICC has a warrant out for the arrest of its President Omar al-Bashir.
There is no shortage of reasons to support South Africa’s decision to withdraw from the ICC.
Those in favour of South Africa remaining in the ICC make the incorrect assumption that justice can only be advanced through the courts. This argument is flawed. In Sierra Leon, for example, many of the victims of the civil war and the intervention of Liberian forces do not know Charles Taylor; they only know Mosquito, the person who terrorised and dismembered them. For these victims, the arrest and conviction of Charles Taylor brought them no justice.
Second, the root of the problems on the African continent is political, not legal. This means that the proposed solutions to the conflicts need an inclusive approach to ensure long-term sustainability. In addition, all parties to the conflict must take collective responsibility for post-war rehabilitation and reconstruction of their country.
Legal processes by their very nature produce winners and losers. Therefore it would be irresponsible not to explore additional solutions, whether political or economic, to arrive at a peaceful resolution to the crisis. South Africa and Cote d’Ivoire are cases in point with valuable lessons to be drawn.
Third, an argument can be made that the manner in which the ICC dispenses justice is unjust. The majority of the people who end up at The Hague are those who are seen to be advancing interests inconsistent to those of powerful Western countries. A close assessment of the Ivoirian and Congolese cases shows that the modus operandi of the Western powers is glaringly obvious: the losers in those conflicts, Jean-Pierre Bemba and Laurent Gbagbo respectively, ended up being arrested while other perpetrators such as the UN and French-backed rebel leaders were let off the hook. This begs the question, in whose interest?
It is public knowledge that following the 2011 Ivoirian elections, some of the worst atrocities were carried out by the north-based rebels: women and children were maimed and killed in full view of the UN and French troops deployed in that country. This led to accusations that the UN and French sanctioned these inhumane rebel activities. However, Gbagbo very quickly became the target as the French, backed by the UN, bombed their way into the presidential residence to hunt down the former Ivoirian leader in April 2011. This is despite the fact that Cote d’Ivoire was not a signatory to the Rome Statute at the time of his arrest. Five years later, humiliated prosecutors have been stumbling and unable to bring convincing charges against Gbagbo. Many in the legal fraternity agree that this is a political rather than a legal matter. The question African observers and academics ask is whether Gbagbo fell victim to powerful Western interests in his refusal to support their agendas. The jury is still out on this matter.
The debate on the ICC’s role in Africa should afford us an opportunity to take stock of how far we’ve come in advancing the cause of justice for all Africans. We need to take collective responsibility, as Africans, for not establishing progressive institutions to address our challenges to ensure that everyone is equal before the law. This vacuum created an opportunity for others to decide these matters on our behalf.
In this regard, the South African government ought to abandon its current posture of grandstanding. Instead, it should take the lead in making a contribution to capacitating the African Court of Justice. Once African countries withdraw from the ICC, there will be no chance of establishing this court. The perfect example is that of the SADC Tribunal. Zimbabwe lobbied for its dissolution, South Africa joined in, and nothing has been established its stead. This will result in the likes of Joseph Kabila of the DRC, Burundi’s Pierre Nkurunziza and many others continuing to go unchecked as they plunder the resources of our people.
Beyond the parochial legal conception, the debate therefore should be located in the more important question of what type of institutions the continent needs to tackle the numerous and persistent challenges it faces.to ensure access to justice for its people. DM