The sooner we exit the International Criminal Court ICC (ICC) the better. It is time to reject the duality of the UN Security Council, which finds expression, at least in part, through the ICC. ‘It is now time to forge a new more equitable and fair international accountability and legal system,’ says International relations scholar Oscar van Heerden, in an analysis on the Daily Maverick site. He outlines a number of reasons for his support  of SA’s withdrawal from the ICC:

  • The duality that exists in the global international system to which the ICC contributes, which is illustrated by examining the nations who are signatories to the Rome Statute.
  • The ICC is structurally flawed and inconsistent in relation to who can bring cases to its attention: While the Rome Statute makes it clear that governments of respective signatory countries are the only rightful plaintiffs at the ICC, a caveat indicates that the permanent five members of the UNSC can also tell the court whom to charge. A select few non-signatory countries are able to influence and determine the fate of signatory countries.
  • ICC judges are not required to have a legal background.
  • Peace must trump justice regardless of how evil the protagonist(s) may be. The SA ‘miracle’ of a negotiated settlement that led to a new democracy would not have been possible if we had sought to exert justice against the apartheid regime.

Says Van Heerden: ‘Our current UN system, of which the Security Council and ICC are an integral part, reflects a duality within the international system where rules apply to some but not to others.’

Full analysis on the Daily Maverick site

However, not all commentators agree. Associate Professor Bonita Meyersfeld, of the Centre for Applied Legal Studies at Wits Law School, says withdrawing from the ICC is a step away from SA’s leading role in international relations. ‘We have an opportunity to balance the inequality between the Global North and the Global South. SA is not taking this opportunity. It is precisely because of the harmful power imbalance and accompanying hubris of the Global North that SA should remain in the ICC.’ In an analysis on the Daily Maverick site, she accepts that global inequality has angered many African states, including SA. Meyersfeld adds: ‘SA should flex its muscles and reject the imperialism that characterises the behaviour of the Global North. Withdrawing from the ICC, however, is not the right tool to deconstruct global inequality and hegemony.’

Full analysis on the Daily Maverick site

The African Union (AU) has previously threatened the en masse withdrawal of African states from the ICC, says the Centre for Constitutional Rights’ Phephelaphi Dube, in an analysis on the centre’s website. She notes the African Court – established by the African Charter on Human and Peoples’ Rights – only has jurisdiction over the 26 countries that have ratified the instrument establishing the court. ‘The African Court, however, has jurisdiction over largely human rights matters and not international criminal justice, unlike the ICC. Despite African states having adopted the Malabo Protocol in 2014 in order to include international criminal law offences in the jurisdiction of the African Court, the Malabo Protocol has not yet come into force as no African state has ratified the protocol.’ She points out that no African Court has the same jurisdiction as the ICC, which creates all the more compulsion for African nations, including SA, to remain as part of the ICC. ‘While South African courts can still preside over, for the time being, cases involving international criminal justice, albeit without the clout of the Rome Statute, the decision to withdraw from the Rome Statute arguably casts a long shadow over SA’s commitment to ending global human rights concerns.’

Full analysis on the Centre for Constitutional Rights website

It is not too late for SA to undo its decision and to continue engaging constructively to improve the ICC, says the Institute for Security Studies’ Anton du Plessis and the Daily Maverick’s Simon Allison, in an analysis on the Daily Maverick site. They argue that SA’s concerns can be far more effectively addressed from inside rather than outside the ICC 'tent', without compromising justice for victims. Arguing that domestic political considerations were the primary motivating factor behind President Jacob Zuma’s decision to withdraw, they say that there is no reason why Zuma’s successor cannot reverse the decision, and ensure that:

  • SA must engage with other States Parties to refine the ICC’s referral processes. In Africa alone, 33 countries have ratified the Rome Statute; if co-ordinated, this would represent the most powerful bloc within the treaty.
  • SA must push for a political resolution to the question of whether serving heads of state should have immunity.
  • SA must push for more clarity from the UN Security Council when it refers situations to the ICC implicating a head of state.
  • SA must continue pushing for UN Security Council reform. The ICC is hamstrung by the Security Council’s reluctance to refer cases involving major powers, which explains why alleged war crimes committed in Iraq, Afghanistan and Syria have yet to be investigated.

These processes, add the authors, will become even longer and more difficult if countries like SA choose not to engage.

Full analysis on the Daily Maverick site