South Africa’s withdrawal from the International Criminal Court: A Time for Reflection

Daniel J.H. Wand, POLIS PhD candidate reflects on South Africa’s changing relationship with the International Criminal Court

On 21 October 2016 the Republic of South Africa deposited with the UN Secretary General notification that it withdraws from the Rome Statute of the International Criminal Court in accordance with Article 127(1) of that Statute, and noted in its Instrument of Withdrawal, a copy of which can be seen here, that the withdrawal ‘shall take effect one year after the date of receipt of the notification’. South Africa is the first state to take such action. Other African states, notably Uganda, Namibia, and Kenya, have however threatened and mooted such a course of action in the past, and only last week Burundi took steps towards its extrication from the Rome Statute regime, although it has not as yet, to the best of my knowledge, filed its Instrument of Withdrawal with the UN Secretary General. Perhaps more surprising, the Gambian government has now indicated its intention to withdraw from the Court.

As many of you reading this post will be aware, the decision by South Africa has not come out of nowhere; it was, however, somewhat unexpected, and certainly caught me off-guard. Despite Burundi’s recent decision to withdraw from the Rome Statute, the criticism levelled at the ICC by Zuma’s government, particularly concerning its decision not to arrest al-Bashir in June 2015, has abated in recent months and its initial threat to withdraw from the Rome Statute was not immediately followed up with concrete action. Moreover, as Mark Kersten noted only last week, relations between African states and the ICC looked as though they were improving. The threat of the mass withdrawal of African states from the ICC did not make it onto the agenda of the most recent African Union Summit; many African states including Cote d’Ivoire, Nigeria, Senegal, Tunisia and Botswana, having opposed it. This stands in stark contrast to the decision of the AU in January 2016 to approve a proposal for developing a ‘roadmap’ for the mass withdrawal of African states from the ICC.

This post takes a brief look at the decision of South Africa and seeks to understand it in the context of the wider anti-ICC sentiment espoused by some African states over the past six or so years. Firstly, however, it must be noted that the legality of the withdrawal under South African constitutional law has already been questioned and it appears that moves are afoot to challenge the government’s action. Whilst this is an interesting issue, it won’t be looked at in this post, although you can see some current commentary on that issue here.

South Africa’s Justification for Withdrawing

Whilst many reasons have been put forward by African states over the years for their criticism of the ICC and objection to its practices, including a perceived anti-African bias and the targeting of African leaders, a criticism that has just been repeated by the Gambian government, the decision of the South African government to withdraw appears to focus on one particular reason, which has its legacy in the al-Bashir case. This is that South Africa’s obligations under the Rome Statute preclude it from granting diplomatic immunity to sitting heads of state subject to an ICC arrest warrant. This, it believes, creates a conflict with its obligations under customary international law, domestic law, and towards the AU, which oblige it to extend immunity visiting heads of state, and, furthermore, that this impedes its ability to conduct effective diplomacy and has a detrimental effect on peace processes to which it contributes.

South Africa’s reasoning for its decision to withdraw is expressed in its Instrument of Withdrawal which states that it

“has found that its obligations with respect to the peaceful resolution of conflicts at times incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute.”

In subsequent justification the Justice and Correctional Services Minister, Michael Masutha, stated that

“in exercising its international relations with foreign countries, particularly with countries in which serious conflicts occur, South Africa has been hindered by the Implementation of the Rome Statute of the ICC Act”.

Furthermore, in the press conference held on 21 October 2016 the Minister referred to the ICC as a ‘legal impediment to diplomacy and to peace, justice and security’ and he has also said that ‘the implementation of the Rome Statute of the International Criminal Court Act 2002 is in conflict and inconsistent with the provisions of the Diplomatic Immunities and Privileges Act 2001’ and that

“we [South Africa] wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and peaceful resolution of conflicts wherever they may occur, particularly on the African continent.”

Lastly, in its Declaratory Statement concerning its withdrawal from the ICC, a copy of which can be viewed here, it states:

“The relationship between State Parties and non-State Parties continue to be governed by customary international law that bestows on a Head of State immunity ratione personae. Arrest of such a person by a State Party pursuant to its Rome Statute obligations, may therefore result in a violation of its customary international law obligations. South Africa is of the view that to continue to be a State Party to the Rome Statute will compromise its efforts to promote peace and security on the African Continent.”

South Africa views the Rome Statute and the ICC as privileging justice at the expense of order, and it doesn’t agree with such normative prioritisation and what it sees as an inflexibility in the hierarchical ordering of the two objectives. I use the term ‘order’ here because unlike many of the other commentaries which focus on the paradigm of ‘peace vs justice’, I believe that the concerns expressed by African states, and by South Africa here, are more than just about peace, in the sense of conflict resolution, and are more about the pursuit of justice undermining the preservation of a pluralist vision of international society. I therefore think that the debate is better captured by the ‘justice vs order’ framing which has its roots in the English School of international relations. This is reflected in South Africa’s Declaratory Statement which states that

“South Africa does not view the ICC in isolation, but as an important element in a new system of international law and governance, and in the context of the need for fundamental reform of the system of global governance”.

This framing is not only applicable to the South African case but explains the positions adopted by other rising powers, including China, Russia and India, towards the ICC, a point which is explicitly made by South Africa in the Statement, and it is illustrative of a wider concern about the evolution of international society.

A Failure to Listen

Another reason that was cited for South Africa’s decision to leave the ICC was that it felt that its concerns had not been listened to by the Court. As Mr Masutha said in the press conference, South Africa’s ‘experience with the ICC left it with the sense that its fundamental right to be heard was violated’. This was a reference to the concerns that South Africa had raised previously during its diplomatic talks with the ICC about the legality of the ICC’s position with respect to al-Bashir’s immunity. South Africa has also expressed its disappointment that its proposal to have the relationship between Articles 27 and 98 of the Rome Statute clarified has fallen upon deaf ears. This feeling of being ignored by the Court has also been expressed by other African nations in the past.

South Africa has previously argued, as have other states, both in political discourse and before courts in legal proceedings, that their membership of the Court does not, and should not, preclude them from granting immunity to al-Bashir as a visiting sitting head of state, despite him being indicted by the ICC and subject to an arrest warrant. These arguments were however rejected by the ICC and South African domestic courts including the North Gauteng High Court which heard the initial case concerning the arrest of al-Bashir, and it’s Supreme Court of Appeal.

This argument does have some merit, however. Many commentators have argued that the UNSC does not have the power to strip al-Bashir of the immunity he is entitled to understand customary international law nor to bind Sudan to the Rome Statute. It has also been argued that the ICC is not entitled to treat al-Bashir as not having immunity before it on the basis of the Security Council having referred the situation in Darfur to the Court and, in any event, that he retains the immunity that he is entitled to by virtue of customary international when he travels to other states including States Parties to the Rome Statute. This argument is challenged by other commentators who have argued that the Court’s position and actions with respect to al-Bashir are perfectly proper in legal terms, which Dapo Akande has repeated in his recent post on South Africa’s withdrawal.

Whatever one’s view of the correct legal position, it is undeniable that the law on the matter is not clear-cut and is certainly subject to legitimate disagreement. For that reason, a proper and robust assessment and interrogation of the law was required but regrettably this was not provided by the ICC; the ICC’s judgements on such issues have glossed over the tensions and uncertainties within the law. As Dov Jacobs has said in his recent post on South Africa’s withdrawal, which is based on substantive article, ‘the ICC’s case law on immunities is disastrous, poorly argued and contrary to international law’. This has been noted by African states and has resulted in a feeling amongst them that the Court is unwilling to listen to their concerns, dismissing them summarily, which has no doubt inspired past claims about the Court’s neo-colonialism.

It is also worth pointing out here that amongst its justifications for leaving the Court, the South African government stated that it would continue ‘to fight against impunity and to bring those who commit atrocities and international crimes to justice’ and it recorded this commitment in its Declaratory Statement. While some may interpret this as a hollow promise, solely and shamelessly designed to put its decision in a more positive light, I think it says something more significant. It highlights that different conceptions of justice exist in the pluralist world order, and that the rigid approach pursued by the ICC is not universally supported. In this sense, unlike many criticisms I have seen, South Africa isn’t simply privileging immunity over justice for victims of crimes, but rather privileging it over the type of justice that is pursued by the ICC and the manner in which it is implemented.

The Future of the Court

There is undoubtedly concern about the implications of South Africa’s decision, particularly given its temporal proximity to Burundi’s decision to withdraw, with fears that it could be the beginning of a mass exodus of African states from the ICC which risks precipitating the Court’s decline into irrelevance. In a press release, the President of the Assembly of States Parties records his concern ‘that this disturbing signal would open the way to other African states withdrawing from the Rome Statute, thus weakening the only permanent international criminal court’. Kate Cronin-Furman and Stephanie Schwartz also discuss this issue in an excellent piece here and other examples are here and here. The prospect of this has been further heightened with Gambia’s decision.

While I think it unlikely that such a mass exodus will occur in the near future, particularly given the recent support that has been expressed for the Court by many African nations, most recently by Gabon’s self-referral, it is nevertheless a lamentable development for the ICC and international criminal justice more generally. There will also be further debate about whether South Africa will seek to fulfil its commitment ‘to fight against impunity’ by ratifying the protocol establishing a criminal chamber of the African Court on Human and Peoples’ Rights. If that occurs and other states follow suit there will need to be consideration of the potential relationship between that Court and the ICC, including whether it exercises jurisdiction under the Rome Statute’s complementarity regime, if that is at all possible.

There has been much immediate criticism of the decision of South Africa to withdraw from the ICC. It has been described, among other things, as ‘deplorable’, ‘a slap in the face for victims’, ‘a victory for impunity and injustice’. It has also been said that it represents a ‘startling disregard for justice’, and is an abandonment of Mandela’s principles and a threat to his legacy. Whilst I am sympathetic to the sentiment of such views as they are an understandable expression of anger, upset and disappointment at South Africa’s decision to leave the court and because many of them reflect legitimate concerns; they do however fail to give sufficient credence to the concerns expressed by South Africa and other African nations both now and over the past years. Rather than acknowledging the complexity of the issue, they polarise the debate in terms of right and wrong, whereas it cannot be understood in such a binary way. As such, these views can be considered part of the problem which provokes anti-ICC sentiment. It is this unwillingness to take proper account of the reasons that lay behind decisions to contest and ultimately, in the case of South Africa, to withdraw from the ICC.

Such views also lose sight of the reality that the Court exists in a world of sovereign states with competing and conflicting normative values and priorities, and furthermore, that the ICC is a treaty-based institution which is dependent on state support to operate effectively and ultimately to survive. Whilst this is not ideal, it is the position we are in, and cannot be ignored. The Court is not infallible; its long term survival is not a forgone conclusion and remains precarious. The court has tough choices to make in terms of the prosecutions it pursues and where it exerts pressure. It needs to decide whether to pursue its ideals of justice uncompromisingly or whether to accept the politics of its existence and to act accordingly, and the international community also has to reflect upon this very difficult issue.

The decision of South Africa to withdraw, as well as the threat of others doing so, will perhaps serve as a reminder to the ICC and its members that they can no longer merely pay cursory regard to the concerns raised by certain African states and must instead take them seriously and engage with them in a meaningful way. It must be recognised that the objections to the Court’s actions is not solely a case of African leaders throwing their toys out of the pram in response to indictments, prosecutions, and criticisms for non-compliance, or attempts to avoid accountability and prosecution, as some have suggested; although I am not so naïve to think that such issues don’t play a role. It is quite coincidental, as others have pointed out, that the decision of the South African government comes only shortly before the Constitutional Court is due to hear and rule on the Bashir affair. They do however also represent real concerns about the Court’s interpretation of international law as well as many other issues including its relationship with the Security Council and a wider concern about its politicisation, the possibility of the Court bringing about regime change, and its effect on peace, security and conflict resolution. But we cannot allow potential elements of self-interest to obscure such real concerns.

I must stress, because I feel that some may perceive it in this way, that this piece does not represent a hostility towards international criminal justice or the ICC. I passionately believe in international criminal law and the ICC as an institution, and I acknowledge that this is a difficult and sensitive issue with which we have to grapple. I firmly believe, however, that we must not let our idealistic support for the Court cause us to bury our heads in the sand and to close our eyes to errors the Court has made and the genuine conflict of norms and visions of society that exist and underpin this issue. We must instead confront the issues which have been raised and debate them openly. To do otherwise would be a disservice to the Court and to justice. If the ICC is going to work effectively and be sustainable, it and its members need to be reflexive, respond to criticism, and be flexible, even perhaps if this means compromising around some of the Court’s more ambitious objectives.

If there is any possibility of South Africa reconsidering and reversing its decision, which many have already implored and is one which would certainly be welcome, there is no doubt that the government would require a commitment by the Court and its members to engage in constructive discussion about its concerns and those of other African nations with a view to these being addressed. As Hannah Woolaver has suggested, the upcoming ASP provides an opportunity to do this. Whether there will be any progress in this respect, we will have to wait and see.