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Another ANC power struggle looms over SA’s withdrawal from the International Criminal Court


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 currently a Deputy Vice-Chancellor at Fort Hare University and writes in his personal capacity.

In December 2017, the 54th national conference of the ANC voted to withdraw South Africa from the International Criminal Court. President Cyril Ramaphosa is stalling that withdrawal – but there is no good reason why we should remain as members.

You have to hand it to the SG. If anything, Ace Magashule, the secretary-general of the ANC, is demonstrating consistency par excellence when it comes to calling for the implementation of the 54th ANC national conference resolutions. He has certainly found President Ramaphosa’s weak spot and is applying the pressure at every turn.

He knows that not implementing or adhering to the conference resolutions will give him ample ammunition against the president at the next national general council (NGC) of the ANC, where Ace and cronies intend to politically pummel Ramaphosa for non-compliance and being intransigent. Hence, they will argue, he is not providing the requisite leadership, resulting in the ultimate question: is he fit to lead the ANC?

In the end, it is not so much that CR won with a very narrow 179 vote margin: no, it is all about whether or not he will implement the radical resolutions endorsed by the RET types at the conference. This is the ultimate test for the president.

What do I mean by this? At the Nasrec conference in December 2017, as I write about in my book, “Two Minutes to Midnight – will Ramaphosa’s ANC survive”, it was apparent to many that the so-called Radical Economic Transformation (RET) grouping had command of the conference, and hence they could ensure that very radical resolutions were pushed through and adopted by the conference. 

Among these resolutions were land expropriation without compensation, the nationalisation of the Reserve Bank, establishing a state bank, diminishing the status of our embassy in Tel Aviv in Israel, and withdrawing from the International Criminal Court (ICC), to mention just a few.

For the purposes of this article, I will only concern myself with the last resolution: that of the withdrawal from the ICC. I have written on this subject before, on 24 October 2016, in which I made the case that South Africa must indeed withdraw from the ICC with immediate effect. I outlined numerous reasons for this which I won’t repeat here, but suffice to mention one or two critical points.

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 have 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 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.

The World Trade Organisation (WTO), the International Monetary 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 the head of the World Bank can only come from the USA. But that’s another argument for another time.

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 borne 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 with severe consequences should they want to exit from the Rome Statute.

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

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 straightforward, unfortunately.

There is an important caveat in the Rome Statute which indicates that the permanent five members of the UN Security Council can also tell the court who 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 when it comes to the lives of others. It is precisely this type of intervention that will also ensure that any matter brought to the ICC against Israel by South Africa will never see the light of day, because we all know that the US will simply veto it and protect Israel. So, the argument that withdrawing might jeopardise SA’s chances of taking Israel to the ICC simply does not hold water, as far as I’m concerned.

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.

Another matter that is 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 talks-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.

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 questioned 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 a 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. This, by the way, is not a personality contest between Ace and Cyril: no, it’s about very serious international relations’ matters. 

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 fairer, international accountability and legal system.   

I’m afraid it is that same duality that is finding expression in this argument about our membership of 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, who will hold those governments and leaders accountable who choose not to sign or ratify the Rome Statute? DM


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