It’s Not Too Late — A Proposal for South Africa to Stay in the ICC

A version of the following article was originally published in the Mail & Guardian and was co-authored with Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and a member of the Africa Group for Justice and Accountability

South African President Cyril Ramaphosa giving a speech in Cape Town, South Africa (Photo: AP)

South Africa’s Justice Minister has presented the International Crimes Bill to the Justice Portfolio Committee of the South African parliament. This process could be a precursor to the country repealing the Rome Statute of the International Criminal Court Act (2002) and eventually withdrawing from the International Criminal Court (ICC). This is very troubling news — for South Africa and the project of global justice itself. It is also unnecessary. South Africa can and should be a champion of the ICC and seek to improve the institution it has already invested so much into. What happens next will determine whether South Africa is a leader or a laggard on international justice. It still has an opportunity to be the latter — and avoid the former. 

This is not the first time that South Africa has moved towards withdrawal from the ICC. In October 2016, the government of Jacob Zuma announced that it would withdraw from the ICC due to a host of reasons, including its belief that, in order to be an active and effective mediator in peace processes, it could not remain a member of the Rome Statute of the ICC. 

Zuma’s efforts to withdraw South Africa from the ICC were thwarted by deft domestic legal action. According to the High Court, which found Zuma’s efforts to withdraw South Africa from the ICC to be unconstitutional and that parliamentary approval of any effort to repeal the ICC Act of 2002 and withdraw the country from the Court was necessary.

After Zuma’s resignation, many observers hoped that his successor, President Cyril Ramaphosa, would not proceed towards withdrawing South Africa from the ICC. This hope was not met by any confirmation that the ANC’s policy of seeking withdrawal from the ICC had changed. For his part, President Ramaphosa has been silent on the matter. Still, as someone widely regarded as a proponent of international law and global justice, many believed that the President would see the value and interest of remaining a state party of the Court. Ramaphosa was on the International Commission on Intervention and State Sovereignty whose conceptualization of the Responsibility to Protect posited the International Criminal Court as a cornerstone of the anti-impunity firmament. South Africa itself has a proud and impressive history of supporting efforts to achieve justice and accountability for mass atrocities, including at the ICC. In his Africa Day address last week, the President emphasised the importance of South Africa supporting international law and the United Nations. Everything should be done to avoid undermining that hard-earned reputation and record.

The government’s decision to continue pushing forward the International Crimes Bill means that the merits of South Africa’s withdrawal from the ICC will be debated in Parliament in the coming weeks and months. Hope in South Africa’s commitment to the ICC now resides amongst the country’s Parliamentarians. But President Ramaphosa and the ANC leadership could still play a role in making the best out of a bad situation. Here’s how.

President Ramaphosa could consider announcing that, while this legislation is being put forward as a result of decisions that the ANC had previously taken, he believes that South Africa should remain a member of the ICC and that ANC members of parliament should vote freely on the bill’s adoption. President Ramaphosa could subsequently welcome public and parliamentary debate as a means to critically assess the Court’s record and identify means to reform the institution and improve its relations with African states. This is undoubtedly needed. The ICC is far from perfect and in need of constructive reform. More must be done to ensure states can effectively manage the sensitive balance between achieving justice and building peace. In having such a debate, South Africa would join others, like Tanzania, who have declared that, while the ICC is far from perfect, they will work to improve the Court from within rather than abandon it altogether.

Such a debate would have the further effect of increasing understanding of the ICC among policy-makers and the wider public. This is desperately needed — in South Africa and beyond. Many of the criticisms regarding the role and impact of the ICC stem from the misunderstandings of the institution and the Court remains poor at effectively communicating its work.  

In siding with South Africa’s continued ICC membership and allowing a free vote for parliamentarians on the International Crimes Bill, President Ramaphosa would help to ensure that the bill was rejected and that the matter of South Africa’s membership in the ICC was emphatically, democratically, and conclusively decided. Rather than undermine South Africa’s international reputation, President Ramaphosa has a unique and rare opportunity to enhance it. It is up to him whether to take advantage of it.

South Africa is at a crossroads. By working to ensure that any effort towards the withdrawal of South African from the ICC is defeated in Parliament by democratic and popular means, President Ramaphosa and the government of South Africa would boost understanding of the ICC, identify means to improve the Court’s work and functioning, and demonstrate true global leadership. That is surely in the interest of a new government seeking to make its mark on the world stage and ensuring its election in the next polls. It is undoubtedly in the interest of the people of South Africa.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa and tagged . Bookmark the permalink.

3 Responses to It’s Not Too Late — A Proposal for South Africa to Stay in the ICC

  1. el roam says:

    Important post . The ideas that South Africa can withdraw simply due to subjective beliefs that the ICC is biased against African state , or that SA needs to take effective role as a mediator in peace processes , is really outrageous . For, it is one thing to join the Rome statute , but totally another , to withdraw from it . How can it be reconciled with the SA constitution one may wonder ?? It is clearly stated in their constitution ,here I quote only some relevant parts :

    Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

    When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

    End of quotation :

    So , last time I have checked , the Rome statute , prima facie so , is clearly CIL ( 124 parties to the Rome statute , let alone imposing and trying for jus cogens offenses ) . One could wonder of course , if an act of the Parliament can repeal the Rome statute then ( as above stated in article 232 ) but clearly this can be only for an act other than repealing CIL . Must be external to it , not related to it ( to basic obedience to it ) and specific , otherwise , it would render it senseless, for it is repealing , the whole idea of CIL . For the ICC is the core of cores of any CIL . The Rome statute , is not a trade agreement for Christ sake .

    And how a claim of apparent bias is related to it ? Omar Al Bashir , escaped arrest at the time in the AU summit ( June 2015 ) due to what ?? Bias ?? of course not !! Two arrest warrants , for : genocide , crimes against humanity , war crimes , had nothing to do with it !! Those are insulting pretexts !!


  2. Pingback: It’s Not Too Late — A Proposal for South Africa to Stay in the ICC – Jehtro Lewis – Blog

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