South Africa’s ruling African National Congress party has raised questions about the country’s membership of the International Criminal Court, saying that the war crimes court had lost direction and no longer fulfilled its mandate. The comments are part of increasing criticism about the ICC’s focus on African cases. South Africa’s relationship with the court also soured after a spat over the arrest of Sudanese President Omar al-Bashir. What does this mean for international justice? Is the rest of Africa likely to follow South Africa’s lead?

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Sonia Robla, chief of public information and outreach, International Criminal Court

“Withdrawing from it is a voluntary and sovereign decision of a country. Actually it is something that is already in the Rome Statute. There is an article, which is article 127, which says that if a country decides to withdraw from the statute, this action would only enter into force one year after the state has deposited its withdrawal notification with the UN Secretary General. In principle, a withdrawal does not affect in any way the obligations arising from the Rome Statute while the state party was a party to the court. Nevertheless, general support for the ICC is necessary in Africa and outside for the International Criminal Court to fulfil its mandate.”

Jacob Enoh Eben, spokesperson, African Union Commission chairperson Dlamini-Zuma

“Basically, the African Union is following the conversations that are ongoing in the ANC, which of course is a conversation which has happened within various members states. So, at this point in time it is very premature for the African Union to make any statement because these are sovereign decisions that go through their own internal processes. So the African Union would really not make any statement per se. But of course, related to the issue of Africa’s relations with the ICC, the African Union Commission chairperson has been very outspoken about the double standard nature of the relationship between the ICC and African leaders. So this is that which the African Union holds as a position, to say that African leaders whilst they are still sitting heads of state will not be tried by the ICC.”

Analysis

Magnus Killander, head of research, Centre for Human Rights, University of Pretoria

How much of this is about the visit by President Bashir - maybe a further justification that not arresting him was the right thing to do?

Well, it’s clearly a reaction to the whole Bashir debacle that’s ongoing since June when the South African authorities didn’t want to arrest Omar al-Bashir despite a request from the ICC. But obviously the history behind it goes further back. There’s been a movement within the African Union to not collaborate with the ICC, in particular in relation to the indictment of heads of state, so in the case of Bashir, but also in relation to the Kenyan president and vice president.

What processes do the ANC talk of when it says it ought to share reasons and motivations with the rest of the continent?

I assume, but this is very much an assumption that the reasoning behind the decision - and in the discussion documents it’s not very clear - it seems to be the decision-making by the ICC prosecutor and the perceived Africa bias in the selection of cases. But at the same time, while the ICC has focused a lot on Africa, a lot of those cases have been referred by the states themselves, acknowledging that they do not have capacity to deal with those particular cases. That’s been the case in Uganda, in the DRC, Central African Republic, Cote d’Ivoire and so forth.

The comments by the ANC point to powerful countries, maybe a veiled comment directed at the UN Security Council. But cases at the ICC aren’t always a result of UN Security Council referral are they?

I’m not sure that they are really, because obviously there’s a lot of opposition to the ICC within the Security Council powers. Neither Russia, nor China, nor the United States have ratified the ICC statute, but they have still referred cases. The cases that they have referred are in Africa, the Sudanese and Libya situation. From that perspective it might be in relation to the Security Council, but I also think it’s a lot of the European big powers, that might not be that big anymore, they’ve perceived to wield the financial muscle behind the ICC.

Does South Africa have a problem with current ICC prosecutor Fatou Bensouda, a Gambian?

There was perhaps more controversy directed specifically at the prosecutor under the old prosecutor Moreno-Ocampo. I think the focus has shifted more towards the court itself than the prosecutor. But at the same time it is the prosecutor who initiates investigations and so forth. So I guess it’s not that open a criticism of the prosecutor as it used to be.

Africa has the largest regional representation as state parties to the Rome Statute, which established the ICC. Doesn’t it then entail that it holds the most sway?

Perhaps there is a point, if you look at, for example, staffing of the ICC, is that now corresponding to the fact that Africa has the biggest component of the state parties? Europe also has a big membership in the ICC and it’s lacking on many other continents.

What’s the alternative to the ICC for South Africa, for Africa?

The purported alternative, last year the African Union adopted a protocol to the protocol on the African Court of Justice and Human Rights, to give that court - which deals with human rights complaints, as it is currently constituted - jurisdiction over a number of international crimes, including crimes which would fall under the jurisdiction of the ICC. What they didn’t include, or what they explicitly excluded was jurisdiction over cases brought against senior state officials and/or heads of state and government, which is a clear rebuke to what they have signed up for under the ICC. But I guess there are many problems that one foresees before the entry into force of that protocol. For example financing, international criminal justice is something that is quite expensive. The Hissène Habré trial that’s underway in Senegal was delayed for many years because of financing not being available and that is a trial that is taking place under the auspices of the African Union. So, one would have to see what happens when eventually this protocol has been ratified by a sufficient numbers of states.

What would withdrawing mean constitutionally for South Africa?

The first issue is whether a state can withdraw from the ICC statute. I mean one could construct an argument to remove that type of protection would be a retrogressive measure that could be considered to be unconstitutional under South African law. There are court challenges already in relation to al-Bashir in South Africa, so one will just have to see what comes out of this. And of course, this is a decision by the ANC, while the ANC is the majority in parliament and forms the government - it is not the same as the government, so we would still have to wait for a formal decision from government.

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