OPINION: Leaving ICC betrays SA's history

In 2016, South Africa announced its intention to withdraw from the International Criminal Court (ICC). The decision to withdraw was met with procedural challenges and consequently revoked.

However, there is a division or rethinking of this withdrawal in President Cyril Ramaphosa’s Cabinet. With growing criticism of the ICC in recent years, it is imperative to ask whether South Africa’s decision to leave the ICC is justified or unfortunate.

The idea behind the establishment of the ICC was to have a global court of last resort. While it is recognised that there is a need for strong domestic and regional justice mechanisms throughout the globe, mechanisms that ensure justice, these institutions should, however, function as complementary courts and not as a justification for doing away with the ICC.

It has been highlighted that the ICC is not only a justice mechanism, but also serves as a voice to victims and, most importantly, it serves as a deterrent for future human rights abuses. These institutions of accountability are therefore essential in protecting the human rights of people globally, including those on the African continent.

While there is acknowledgement that the ICC is not a perfect institution, its flaws can be remedied and there are valid reasons that support its reform. There are several avenues available to African states to address their concerns with the Rome Statute. In fact, article 121 of the statute allows for amendments to the statute.

As it stands, global political power dynamics do come into play with regard to the operation of the court. According to the Rome Statute, cases may reach the ICC in three ways – through a state party referral, a referral by the ICC prosecutor or a referral by the UN Security Council.

The first two ways are less contentious than that of the council. The veto power granted to council members influences cases that are taken up by the court. In order for the ICC to exercise its jurisdiction over any state, the five states with veto power have to reach a consensus for referral.

As a result, the dominating perception is that the ICC no longer serves African interests, as there is a lack of adequate geographic representation of the ICC’s international community of states in the security council. Consequently, the ICC has received increased backlash for this.

The African Union (AU) as a collective and other ICC members should challenge the ICC by proposing reforms, rather than having each state go its separate way and addressing the court’s shortfalls.

State parties to the ICC should adopt amendments to the Rome Statute, which aim to deflect an exclusive African prosecutorial activity by the ICC. The scope for reform should be from within the ICC and this should not necessitate abandoning the court altogether.

The main hurdle for South Africa is trying to uphold its own diplomatic immunity laws with its obligations under the Rome Statute.

However, the statute does not purport to bar peace negotiations by prohibiting immunity. The idea is that immunity for heads of state would encourage impunity and as a result the jurisdiction of the court would be constrained and this would frustrate the global efforts to fight impunity.

It is still possible for South Africa to ensure that there are peaceful negotiations within fellow African states. South Africa still has the ability to interact with the African leaders as a regional peace broker, but in the same breath it should ensure that global justice is achieved.

Withdrawal from the ICC by South Africa would suggest that it has chosen good relations with other heads of state over maintaining global peace, at the expense of global justice when in fact ensuring global justice would in the long term ensure sustainable and lasting peace.

It is no surprise that South Africa was at the forefront for the establishment of the ICC, given its historical record of human rights violations during the apartheid regime and its commitment to fighting for a better international and global order.

As stated in the Freedom Charter, the country “shall strive to maintain world peace and the settlement of all international disputes by negotiation, not war”. Therefore, withdrawing from the ICC betrays South Africa’s own history and is against the principles of the Freedom Charter, our own constitutional values and our understanding of human rights being universal, interdependent and indivisible.

There is a need to promote the universality of human rights, and crimes against humanity undermine this important concept and ideal.

Withdrawing from the ICC when there are no African regional or subregional options is difficult to comprehend and makes the decision to withdraw suspicious to say the least.

More than a decade since it was proposed, African countries are still battling to establish an African criminal court.

Southern African Development Community (SADC) leaders dismantled the human rights mandate of the SADC Tribunal, and South Africa has yet to grant its citizens direct access to the African court of human rights. Should we not address these issues first?

The election of South Africa to the UN Security Council gives it another opportunity to address its concerns over the Rome Statute and to push for better reforms in this regard. Therefore, withdrawing at this juncture would be counterproductive.

- Thipanyane is the chief executive of the SA Human Rights Commission