On the 23 June 2020, 67* member states endorsed a statement in support of the International Criminal Court (ICC) following the release of the United States of America Executive Order of 11 June 2020. The executive order sets up travel restrictions and economic sanctions such as freezing assets of certain persons associated with the ICC. The order aims to discourage the ICC in asserting jurisdiction over American citizens.

The US attempt to prevent the opening of investigations, carrying out of arrests, detentions and prosecutions against US citizens alleged to have committed international crimes, can only be described as the behaviour of a bully. While the 67 state parties confirmed their unwavering support for the court as an independent and impartial judicial institution, they also indicated their opposition to the executive order. The statement embodies the ICC member states’ collective commitment to fight impunity for the most atrocious crimes.

South Africa’s endorsement of the statement was joined by 12 other African countries – Burkina Faso, Côte d’Ivoire, Democratic Republic of Congo, Gambia, Lesotho, Madagascar, Namibia, Nigeria, Senegal, Sierra Leone, Tunisia, and Uganda. The statement from 23 June 2020 is however only one part of a widespread outcry and condemnation that includes civil society organisations, human rights lawyers, and academics.

While this attack on the ICC suggests a stormy future for the court, a silver lining in these developments is South Africa’s support of the statement. Considering that South Africa has twice attempted to withdraw from the ICC, seeing the country publicly support the ICC indicates a reversal of that decision. Observing that only 67 out of 123 ICC member states (54%) endorsed the letter is a clear indication of how polarised states’ positions on the court are. Against this background, South Africa’s endorsement and renewed commitment to the ICC is incredibly encouraging.

South Africa has historically supported the ICC, having signed the Rome Statute in 1998 and depositing its ratification in 2000. South Africa’s commitment to international criminal justice is embodied in the domestication of the Rome Statute by way of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. South African courts have been able to provide avenues of justice for international crimes due to the existence of the Implementation Act. 

The Southern Africa Litigation Centre’s pursuance of the arrest of former Sudanese President Omar al Bashir in 2015, while not successful, gave hope to Darfuri victims that justice was attainable. The case was unfortunately also the catalyst for South Africa’s two attempts at withdrawing from the ICC, which resulted in the South African government introducing the International Crimes Bill to Parliament. This bill was set to repeal the Implementation Act and withdraw South Africa as a member state. The intention was to replace this with a weak legal framework within which to prosecute international crimes domestically. The bill lapsed in May 2019, was revived in October 2019, and has had no movement since that time.

Al Bashir has been on the ICC’s wanted list for crimes against humanity, war crimes and genocide in Darfur since 2009. He was the first sitting head of state to be issued with an ICC arrest warrant. It was the South African high court’s confirmation that he should be arrested for handing over to the ICC that led to heated debates on international justice and impunity.

It is ironic that this case was ultimately the cause of South Africa’s attempts to leave the ICC. Al Bashir was eventually overthrown and arrested in April 2019 after months of sustained protests by Sudanese citizens who refused to endure his rule any longer. This ousting is the manifestation of the will of the Sudanese people to dismiss a regime that has remained in power for 30 years through dictatorship, kleptocracy, patronage, fear, and wide-scale human rights abuses. Thousands of citizens took to the streets in the four months preceding his ousting, demanding that he step down. In February 2020, the Sudanese government announced that it had agreed to hand over Al Bashir to the ICC. This has not yet taken place.

The South African government has previously stated that its membership of the ICC was a hindrance to peace negotiations, with concerns about immunity for heads of state. With the changes in Sudan, there are now no sitting African heads of state who are indicted and wanted by the ICC. As a result, there exist no barriers to peace negotiations based on immunity considerations. Whether this is responsible for South Africa’s change of heart is unclear. The replacement of Jacob Zuma by Cyril Ramaphosa as South Africa’s president is more likely the reason.

It has been a long and challenging path, but South Africa’s renewed commitment is a good sign for accountability on international crimes. DM

*The signatories are: Andorra, Argentina, Australia, Austria, Bangladesh, Belgium, Belize, Bolivia, Brazil, Bulgaria, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, Estonia, Fiji, Finland, France, Gambia, Germany, Greece, Guyana, Iceland, Ireland, Italy, Latvia, Lesotho, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malta, Mexico, Namibia, Netherlands, New Zealand, Nigeria, Norway, Peru, Portugal, Romania, Saint Vincent and the Grenadines, San Marino, Senegal, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, State of Palestine, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Uganda, United Kingdom, Uruguay and Venezuela.