(Photo: Mark Kersten)

The clock is ticking. In just about eleven months, South Africa will officially withdraw from the International Criminal Court (ICC). Here at the Assembly of States Parties (ASP), though, the overall feeling is optimistic. Many participants, especially those representing civil society and human rights organizations, seem convinced that South Africa will consider withdrawing its ICC withdrawal. There is little doubt that the country has sent some signals it will remain engaged with the Court. The country’s delegation was led by Justice Minister Michael Masutha — itself an important indication that the government remains serious about its engagement with the ICC. Masutha also had a highly publicized meeting with ICC President Silvia Fernández de Gurmendi and declared to the country delegations present here in The Hague that South Africa would continue to work with the Court and push to improve the institution. There may indeed be a crack in the wall of South Africa’s commitment to withdrawing from the ICC. But proponents of the ICC and, in particular, ICC member-states need to realize that, right now, nothing has yet been achieved. The clock is still ticking.

Much has been said at the ASP about the need for continued ‘dialogue’. Indeed, the word ‘dialogue’ seems to be the theme of this conference, despite the fact that it should really be the theme of all ASP meetings. Still, when it comes to South Africa, while continued and respectful dialogue is essential, what is needed now is a period of bargaining and negotiations. As time runs down on South Africa’s withdrawal, we have entered a period of conflict resolution. A number of important issues should be considered in this context.

First, there is a need to recognize that addressing South Africa’s withdrawal will require both political and legal responses and considerations. Those hoping — and pushing — for South Africa to reconsider its ICC exit must understand what they are asking the government to do: a very significant political flip-flop. That is not easy for any government and will require a narrative that allows the South African government not just to save face but to show that they ‘won’ their case at the ICC. Right now, it isn’t clear whether this is possible, but it is evident that without such a story-line, the African National Congress (ANC) government of Jacob Zuma is unlikely to budge.

Of course, some are trying to re-set the clock. There is ongoing domestic litigation aimed at getting South Africa’s Constitutional Court to fule that the executive order issued by Zuma to withdraw South Africa from the ICC was unconstitutional because the government did not consult Parliament. To be clear, all civil society actors should be supported in their right to challenge the government’s actions — especially when they threaten South African rule of law. However, part of the litigation effort has been led by the Democratic Alliance — the ANC’s primary political opposition. This complicates matters for the government. If they are to rescind their withdrawal — either temporarily or permanently — they now most ‘lose’ to the Democratic Alliance and not just to the country’s courts and civil society. In other words, the Democratic Alliance’s direct involvement risks raising the costs of the government conceding and remaining a member-state.

So what can be done? Here are three proposals which, I believe, should at the very least be on the table. None are full-proof — there is no perfect way out of this. But assuming that states and the ICC want South Africa to remain a member of the Court, here are three options that could be explored.

Clarify Rulings on Head of States Immunity

The most important legal claim from South Africa, as well as other African states, pertains to the issue of Head of State Immunity. The amount of times you hear “Article 27” and “Article 98” (the relevant sections of the ICC’s Rome Statute) at the ASP is astounding. But the fact remains that there are legitimate disagreements over whether ICC-indicted heads of states the likes of Omar al-Bashir can travel on diplomatic tours — particularly to non-member states. This isn’t just a political issue. Academics and jurists alike can’t agree on the law. Making matters worse, ICC rulings contain contradictory positions on the matter. This is untenable and the Court’s position must be clarified. On this end, there have been welcome suggestions that Canada will lead a push to have an “interpretative declaration” on the relationship between these two articles.

Offer South Africa an ICC Conference

As part of a package of ‘diplomatic goodies’, the ICC should consider offering South Africa a conference, perhaps to celebrate the 20th anniversary of the Court in 2022. Crucially, however, this can’t be done as a direct reaction to South Africa’s withdrawal, lest it be seen as a reward to states who threaten to leave the Court. Still, ICC member-states should at least explore whether South Africa would welcome the diplomatic attention and reputitional  ???? points that could be gained by hosting an international conference — if it remains an member-state of the Court.

International Court of Justice Advisory Opinion — Plus ICC Hiatus on Immunity Rulings

Given the continued lack of consensus on head of state immunity, the Assembly of States parties should consider issuing a request to the International Court of Justice (ICJ) to issue an advisory opinion on the subject. This point has been raised by others before but, crucially, I believe that this request should come from all ICC member-states states as a symbolic demonstration of unity. Of course, the ICJ is notoriously slow when it comes to issuing judgements and opinions. Therefore, the ICC should simultaneously propose that it will not sanction or condemn states hosting indicted heads of state until the ICJ issues it findings on the issue of head of state immunity.

Conclusion: Of Gum and Shoes

Neither the Court nor the South African government have made clear what their ‘best offer’ might be to ensure that South Africa remains a member-state. There are costs to all of these proposals — and to any others that may be tabled in the coming(s) weeks and months. There is no perfect path out of the situation that the ICC and South Africa find themselves in. But it may be that the body of the ICC has to move forward with some gum on its boots. Surely that’s better than forging ahead with only one shoe.

This article was originally posted as part of my ongoing bi-monthly column CourtSide Justice, at Justice Hub.