South Africa Reaffirms its Support for the ICC
South Africa’s early support for the idea of a permanent international criminal court is well known. In particular, its influence at Rome in 1998 where the International Criminal Court’s (ICC) statute was drafted has been chronicled widely and admired deservedly.
Max du Plessis, Senior Research Associate, International Crime in Africa Programme
South Africa’s early support for the idea of a permanent
international criminal court is well known. In particular, its
influence at Rome in 1998 where the International Criminal Court’s
(ICC) statute was drafted has been chronicled widely and admired
deservedly. Events in recent months have tested South Africa’s
commitment to international criminal justice in general, and the ICC in
particular. Those who value justice and the rule of law will therefore
be encouraged by the country’s recent reaffirmation of support for the
ICC.
On 17 July 1998 South Africa signed and ratified the ICC Statute to
become the 23rd State Party. It also gave domestic effect to the
Statute by passing the Implementation of the Rome Statute of the
International Criminal Court Act 27 2002 (“ICC Act”). The passing of
the ICC Act was momentous: prior to the ICC Act, South Africa had no
municipal legislation on the subject of war crimes or crimes against
humanity, and no domestic prosecutions of international crimes had
taken place in the country. Through its support for the ICC South
Africa set an example that was soon followed by a number of its peers.
Africa seemed truly committed to ending impunity for grave crimes.
Not so fast. The strong stand in support of the ICC that
characterized (South) Africa’s earlier position on international
criminal justice is less evident today. This change in position tracks a
broader “push-back” against the ICC on the continent. The reasons for
Africa’s apparent resistance to the ICC have been well documented.
- First, there is the suggestion that the ICC is a hegemonic tool of western powers.
- Second, and apparently related to the first
allegation, is the argument that the ICC is an institution which is
targeting or discriminating against Africa.
- Third, there is the suggestion that the ICC’s
focus only on Africa is undermining rather than assisting African
efforts to solve its problems, especially peace efforts or conflict
resolution processes. The ICC’s hitherto exclusive African focus has
generated within the AU a call for the empowerment of the African Court
on Human and Peoples’ Rights to deal with serious crimes of
international concern, as an apparent alternative to the ICC.
- Fourth, because the Security Council (SC) to
date has chosen not to accede to the AU’s request for a deferral of the
Sudan investigation, the AU has complained that the SC has ignored
African calls for peace to be respected over justice.
- Fifth, some object to the fact that the SC (with
its skewed institutional power) while entitled to send cases to the
ICC, has made itself guilty of a double-standard since it has done so
in respect of Sudan but has not done so in relation to, for instance,
Gaza.
- Sixth is the objection that the
Court has decided to proceed against a sitting head of state of a
country that is not party to the Rome Statute.
It is not completely clear how South Africa positions itself in
respect of these complaints. Reports emerged that during May 2009 South
Africa had invited President al-Bashir – by then wanted by the ICC –
to President Zuma’s inauguration. If he were to arrive the country
faced an embarrassing situation that threatened to undermine the
jubilation of inauguration day. On the eve of the inauguration the
Government clarified that although the Sudanese government was invited,
President al-Bashir was not. Al-Bashir chose not to visit South Africa
at that time.
Then July was dominated by the news that South Africa joined ranks
with others at an AU meeting in Sirte, Libya, to support a 3 July AU
resolution (apparently driven by President Gaddafi) calling on its
members to defy the international arrest warrant issued by the ICC for
al-Bashir. But just shy of a month before that South Africa’s Justice
Minister at a different AU meeting in Addis Ababa had joined with other
African states to affirm a deep commitment to the Court.
The Sirte resolution of the AU on 3 July – stressing that Member
States would not cooperate in the arrest and surrender of African
indicted personalities – was quickly condemned as a betrayal of
Africa`s commitment to end impunity for human rights atrocities, and an
international treaty violation. Only Botswana publicly distanced itself
from the AU move.
Because of its support for the resolution South Africa was quickly
singled out for severe criticism both at home and abroad. One example
of the criticism is a statement of 15 July 2009 signed by several South
African civil society organisations and many concerned individuals
calling upon President Jacob Zuma to honour South Africa’s treaty
obligations by cooperating with the ICC in relation to the warrant of
arrest issued for President al-Bashir. The General Council of the Bar
issued its own strongly worded statement on the same day calling on
South Africa to honour its legal and constitutional obligations in
relation to the ICC.
After this directed criticism the Government issued a response which
purported to clarify that it was committed to its legal obligations in
relation to the possible arrest of President al-Bashir. On 31 July
2009 the Department of International Relations and Cooperation issued a
press statement saying that it would honour its legal obligations to
the Court, including cooperation in respect of the arrest warrant for
al-Bashir. It also clarified South Africa’s position on immunities for
heads of state, explaining that official capacity (even in relation to
sitting heads of state) provides no exemption from criminal
responsibility.
Remarkably, at that press conference it was disclosed that an international arrest warrant for al-Bashir “has been received” (presumably from the ICC) and “endorsed by a [South African] magistrate”. South Africa was clear: al-Bashir would be arrested if he came to South Africa.
Whether the public position adopted by the Government at this 31
July 2009 media briefing was a reversal of the position it had adopted
in supporting the 3 July 2009 AU decision remains unclear. It is
nonetheless a praise-worthy clarification of South Africa’s commitment
to its treaty and domestic legal obligations. South Africa, like
Botswana and Chad before it, will no doubt come under increasing
regional pressure as a result of its decision to support the ICC. More
African countries, with the support of civil society groups, need to
reaffirm their commitment to justice and the rule of law. Without a
clear, collective and principled African voice on these issues, the
valuable progress of the past decade may be significantly diminished.
This would not be in Africa’s interests. And it would be a sad blow for
the victims of grave international crimes.
