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Why South Africa’s withdrawal from the ICC is a blow for victims of war crimes

By Kaajal Ramjathan-Keogh
18 October 2015

This past weekend, the ANC announced it would initiate a process for South Africa to withdraw from the Rome Statute of the International Criminal Court (ICC). South Africa’s withdrawal from the ICC will be a voluntary move. Article 127 of the Rome Statute says, “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 United Nations Secretary General.” The ICC has responded saying that a withdrawal does not affect the obligations arising from the Rome Statute while the State was a Party to the Statute. It would therefore not affect past obligations or any on-going proceedings. Any obligations which South Africa had arising from the visit of President Bashir in June 2015 would therefore stand.

There is broad acknowledgement that there are problems with the United Nations Security Council (UNSC) in respect of its membership and veto powers. It is grossly unfair when only some states are required to play by the rules. The UNSC is composed of 15 members including five permanent members which are China, France, Russian Federation, the United Kingdom, and the United States and ten non-permanent members elected for two-year terms. Of the five permanent members China and the USA are non-state parties to the Rome Statute. Although the US originally voted against the adoption of the Rome Statute, President Bill Clinton unexpectedly reversed his position on 31 December 2000 and signed the treaty. However in 2002 the Bush administration informed the UN that the US no longer intended to become state parties. This of course does not stop the USA from encouraging other states to comply when it refuses to be bound itself. The US has supported the referral of Syria to the ICC however that referral failed after China and Russia exercised their veto rights.  More disturbing is that the US has also insisted that all referrals contain an exemption clause seeking to preclude the ICC from exercising jurisdiction over US nationals (and the nationals of other countries which have not ratified the ICC’s Statute) accused of crimes in those situations.

In June 2009, several African states, including Comoros, Djibouti, and Senegal, called on African states parties to withdraw en masse from the Rome Statute in protest against allegations that the Court targets Africa, and specifically in response to the indictment of Sudanese President Omar al-Bashir. In September 2013, Kenya‘s National Assembly passed a motion to withdraw from the ICC in protest against the ICC investigation in Kenya, although no law effecting withdrawal has been proposed. A mass withdrawal from the ICC by African member states in response to the trial of Kenyan authorities was discussed at a previous African Union Summit. The summit concluded that serving heads of state should not be put on trial, and that the Kenyan cases should be deferred. However, the summit did not endorse the proposal for a mass withdrawal due to lack of support for the idea. Following this the ICC’s Assembly of State Parties responded by agreeing to consider proposed amendments to the Rome Statute to address the AU’s concerns.

The UK and USA also opposed the Security Council considering a referral of the situation in the Occupied Palestinian Territories to the ICC Prosecutor. In March 2011, both voted against a UN Human Rights Council resolution which called for the Security Council to consider the step. The focus of UNSC permanent members on protecting their individual geopolitical interests and alliances over their mandate to maintain international peace and security is extremely damaging to the credibility and effectiveness of the Security Council and needs to be confronted. But does South Africa’s plan to leave the ICC aim to address these serious issues?

Many years ago and under the stewardship of Thabo Mbeki, South Africa played a key role in complying with the ICC and will now be the instigator of a mass walk out from the ICC. For South Africa, the road to withdrawal would begin with a parliamentary move to repeal the Implementation of the Rome Statute of the International Court Act, which introduced the Rome Statute, the basis of the International Criminal Court, into South African law. The issue would have to be debated in Parliament, with attendant public consultation, which would give activists a chance to express their unhappiness at South Africa reneging on its commitment to address crimes against humanity.

But removing the Rome Statute from South African law would not end the country’s obligations to the ICC immediately. The statute itself makes provision for the withdrawal of states, but requires a minimum notice period of one year, in writing, to the secretary general of the United Nations, and is explicit about the continuing obligations of states that withdraw. But withdrawing from the Rome Statute would ensure that South Africa would have neither an obligation nor any system to participate in the prosecution of a sitting head of state. And these moves are motivated by a need to protect a wanted war criminal. Sudanese President Al Bashir is no hero. He has exploited anti-Western sentiment among African leaders to preserve his own impunity.

The ICC Prosecutor Luis Moreno-Ocampo has presented evidence showing that Sudanese President, Al Bashir committed crimes of genocide, crimes against humanity and war crimes in Darfur. After an extended investigation the Prosecutor concluded there are reasonable grounds to believe that Al Bashir bears criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes. The evidence shows that Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups on account of their ethnicity. Members of the three groups historically influential in Darfur challenged the marginalization of the province and engaged in a rebellion. Al Bashir after he failed to defeat the armed movements went after the people. The Prosecutor said of Al Bashir “His motives were largely political. His intent was genocide. ” For over 5 years armed forces and the Militia/Janjaweed on Al Bashir’s orders have attacked and destroyed villages. They then pursued the survivors in the desert. Al Bashir even blocked international assistance for the Sudanese people.

The Prosecutor added that Al Bashir’s “intent to commit genocide became clear with the well-coordinated attacks on the 2, 4 million civilians who found a haven in the camps.  He organised the destitution, insecurity and harassment of the survivors.  He did not need bullets. He used other weapons: rapes, hunger, and fear. As efficient, but silent.”

An African state, Senegal, was the first to ratify the ICC Statute. South Africa followed closely by ratifying it in November 2000 and went on to adopt legislation to facilitate the application of the Rome Statute in domestic law. This ICC Act in its preamble makes mention of the concern for the suffering of many as a result of atrocities, and of South Africa’s acceptance back into the community of nations.

Today, 34 of the total 123 state parties to the ICC Statute are from Africa. That is by some margin the largest regional representation. The ANC is setting in motion a process that will see the demise of the ICC that South Africa and many African states campaigned vigorously for if indeed it does lead to mass withdrawal from the ICC. This is however not guaranteed. There continues to a great need for and support of the ICC. Is it more important to ensure impunity for bad African leaders than to seek justice for the victims of genocide and crimes against humanity? An ICC walkout led by South Africa represents a serious threat to the struggle against impunity and the system of accountability and will ultimately lead to a situation where African victims will suffer the greatest loss.

Kaajal Ramjathan-Keogh is the Executive Director of the Southern Africa Litigation Centre

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