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Nicole Fritz

The Sunday Independent

South Africa would lose much more than it could ever gain by withdrawing from the International Criminal Court, says Nicole Fritz

Johannesburg – Will South Africa support an African Union proposal for African states to withdraw en masse from the International Criminal Court (ICC)?

Generally, when South Africa takes a position on the world stage in conflict with its human rights obligations it does so for one of two reasons: either it feels compelled to advance continental or regional positions at odds with such commitments or it believes its position might advance another of its principled objectives – securing fairer, more equitable representation at the helm of global governance.

Both motives exercise some pull on South Africa as it considers its position vis-à-vis the ICC.

Support for withdrawal would certainly win the country friends and allies among some of Africa’s most powerful states – most particularly Kenya, but also Uganda and Ethiopia.

Withdrawal can also be painted as a potent rejection of the double standards and disparity that characterise so much of international affairs – the ICC is intended to be a world court but until now its focus has been exclusively on Africa.

Still, South Africa would overwhelmingly lose much more than it could ever gain through withdrawal. Its investment in the court has been considerable.

Then Justice Minister Dullah Omar and his advisor, Medard Rwelamira, played key roles in the negotiations at Rome that led to the court’s establishment.

And South Africa was instrumental in forging a consensus among a majority of states that saw off attempts by others, like the US, to devise a less independent court, one more beholden to the UN Security Council.

Quite apart from the actual role played by South Africa, it was also seen as a figurative champion of the court and won much international goodwill as a result.

The ICC is a product of a particular time, the decade following the end of the Cold War, when it appeared that the paralysis that had previously defined world affairs might be supplanted by new forms of co-operation.

It was a decade which saw atrocities in Rwanda and the Balkans but also an end to apartheid in South Africa, and all three spoke to the importance of accountability for international crimes.

If South Africa and the ANC, in particular, were admired for the apparent magnanimity of the Truth and Reconciliation Process, there was also an appreciation on the part of the international community that, had an international criminal court already been in existence, South Africa might not have had to make so agonising a choice as to allow for amnesties.

South Africa will be aware, too, that the ICC represents the most innovative initiative in global governance since the establishment of the post-World War II institutions.

Yet unlike the design of the UN or the Bretton Woods institutions, at the Rome conference African states were afforded equal status in deliberations about the court and they seized the opportunity, signing and ratifying in large numbers and constituting the biggest regional bloc of state parties to the ICC.

They have also sought to actively use the court.

Five of the eight situations being considered by the court were put there because the states themselves requested ICC intervention. To withdraw would be to squander all of this investment.

Moreover, South Africa has not exhausted opportunities for internal reform and the profile it might secure for itself in initiating such reform.

What sometimes goes unrecognised in discussions of the ICC is that it didn’t so much put in place a single court to secure accountability for the world’s worst crimes, but a system of courts – domestic and international.

The central operating principle is, and should be, that the ICC can only investigate and prosecute these crimes where countries which have jurisdiction to do so are unwilling or unable – called the principle of “complementarity”.

No one can deny that it is far better generally for trials to be held close to the sites where the crimes were committed, rather than in some far-flung court in the Hague.

For justice to have any resonance, it must be seen to be done – particularly by the victims and perpetrators.

And given that the crimes within the ICC’s reckoning – genocide, crimes against humanity, war crimes – are likely to be committed against the most powerless, marginalised people, it is especially improbable that they would have access to proceedings in the Hague.

But this preference for domestic proceedings in the ICC’s design also allows the potential for strengthening domestic legal systems – an opportunity South Africa has recognised and sought to promote.

In Africa particularly, where many states have significant rule-of-law challenges, concerted international efforts to build capacity within domestic legal systems to try international crimes would strengthen capacity to address more domestic crime as well.

At the ICC Review Conference held in Kampala, Uganda in 2010, South Africa co-sponsored the session on complementarity.

Little, however, has come of attempts to realise Africa’s domestic capacity for international criminal trials.

South Africa could and should lead efforts compelling a recognition within the international community that obligations to support the ICC are not exhausted by providing funding only to the court. Rather, there should be a standing fund to allow states that are willing but lack the technical and financial resources to institute international investigations and prosecutions to do so.

South Africa, especially, has extensive technical expertise in the implementation of domestic processes.

Its domesticating legislation for international crime, and the specialised resources and units it has committed thereto, are viewed as models the world over.

Moreover, South Africans have been exhaustively called upon by the UN and other international bodies to provide their expertise on transitional justice initiatives – individuals like Bongani Majola at the UN Tribunal for Rwanda; Nicholas Haysom for the UN in Afghanistan; Navi Pillay, UN Human Rights Commissioner; Richard Goldstone and John Dugard – in recognition of the exceptional skills South Africa has in this field. South Africa might of its own accord look to lending this type of expertise to states willing but unable to stage international prosecutions.

South Africa will also recognise that the ICC is necessarily only the beginning of a larger push to secure accountability for historical wrongs and that individual criminal liability, as addressed through the ICC, is only the first and easiest step.

President Zuma noted at the recent opening of the UN General Assembly that failure to address historical inequalities in areas of international trade and climate change register as enormous non-tariff barriers for African states.

African states, in particular, will want to secure innovations within global governance that look to secure accountability, or some form of redress at least, from entities like states and large transnational corporations so as to permit fairer, more equal current-day exchange. But this project goes nowhere if the first step is destroyed by those who stand to be its greatest beneficiaries – African states.

Finally, South Africa will not want to ignore the plight of those who, subjected to mass killings, rapes or displacement, face no prospect of seeing justice done but before the ICC.

South Africans know only too well the strangling disempowerment that comes from watching perpetrators go unpunished, without ever having to face the consequences of their crimes.

None of this is to say the ICC should go without criticism. There are several credibly substantiated and genuine concerns as to its operation.

But South Africa’s stance, and that of Africa, should be one of critical engagement. To withdraw, South Africa would cut off its nose to spite its face.

* Nicole Fritz is the director of the Southern Africa Litigation Centre (SALC).

** The views expressed here do not necessarily reflect those of Independent Newspapers


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