Azad Essa: SA’s pull-out from ICC a disgrace

Minister of International Relations and Co-operation South Africa Maite Nkoana-Mashabane seated with Sudanese Minister Abdul-Halim Ismail Al-Mutaafi. In the background is President Jacob Zuma and President Omar Al-Bashir

Minister of International Relations and Co-operation South Africa Maite Nkoana-Mashabane seated with Sudanese Minister Abdul-Halim Ismail Al-Mutaafi. In the background is President Jacob Zuma and President Omar Al-Bashir

Published Nov 3, 2016

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Considering the tenuous grounds and lack of debate or discussion over the decision, the country has inflicted violence of its own, writes Azad Essa.

Last month the South African government announced it would be leaving the International Criminal Court (ICC). The decision is not just legally dubious but is a monumental embarrassment for the country.

This week, civil society groups, including the Council for the Advancement of the South African Constitution, will be taking the issue to the Constitutional Court, in an attempt to search for means to have the move blocked. And they have good reason to do so.

The South African government says it will pull out of the ICC because it is incompatible with its attempts to mediate peace in war-torn parts of the continent. South Africa has long bickered about the ICC since both Kenya’s Uhuru Kenyatta and Sudan’s Omar al-Bashir were charged by the court for crimes against humanity. But the issue really came to a head when Zuma’s administration refused to arrest al-Bashir during his visit to the country in 2015. The backlash against South Africa was immense. In turn, South Africa signalled that it was on its way out. Last week Burundi did the same, but South Africa actually submitted the “Instrument of Withdrawal.”

For long, some African leaders’ respect for the ICC, the only permanent international body set up to try individuals for some of the most grotesque war crimes, has waned. The major complaint is that the court has focused only on Africa. Take for instance Ethiopian Foreign Minister Tedros Adhanom’s comments: “The manner in which the Court has been operating, particularly its unfair treatment of Africa and Africans, leaves much to be desired.” Or Sudanese Foreign Minister Ali Karti: "African countries have their own mechanisms of justice and they prove to be good, better than the European ones." 

It is true that out of the six cases completed by the ICC, all have involved African nationals.

Moreover, out of the 10 current cases, only one focuses on a matter outside the continent. It is also a fact that the United States, Russia and China, and even Israel are not signatories, which means that grievous crimes against humanity in Iraq, Yemen, Syria or the Gaza Strip are likely to go unpunished. But this does not tell the full story. For one, the ICC can only investigate in places in which it has jurisdiction. It is not allowed to open a case in Syria for instance because Syria is not a signatory to the treaty. If the UN Security Council refers a case to the ICC, it can take it up; however, with the egregious actions of a number of governments in Syria, the possibility in slim.

While this is a completely unequal, even bogus method to institute a global justice architecture, the ICC’s involvement in African countries has come from an invitation from those states themselves to conduct investigations. These cases include Uganda, DR Congo, Mali, CAR and Cote D'Ivoire.

Of course this doesn’t mean that there isn’t a problem with the ICC. There is, and nobody is denying it.

But does South Africa’s action necessitate a move to reform the Court or will it just create more murkiness and ambiguity in a global system already operating on dangerous binaries?

One half of this can be answered through a study of South Africa’s recent foreign policy. In a nutshell, the country’s eye is on the money and power and not peace and security. Then there is Zuma’s administration at home. Unfortunately, this decision cannot be seen in isolation from the current domestic turmoil in the country: The move to indict the finance minister, the attempts to silence public protector’s state-capture report and the rasping tactics to put down student protests in their struggle for free university education.

This is the same government that is urging us to believe it has noble intentions with its decision to leave a court that is meant to administer justice in place where local courts are simply ill-equipped.

In many African states, like Sudan or DR Congo, the legal infrastructure doesn’t exist to be able to manage such mammoth crimes and the ICC’s role is important in the interests of accountability and justice.

While it is assumed that many African countries will follow suit, this is not likely to happen. Yes, Namibia and Kenya may do so. But as recently as July, countries like Cote d’Ivoire, Nigeria, Tunisia, Senegal and Botswana all rejected a call by the African Union (AU) for a exodus from the ICC, and it is likely to remain that way.

But it’s not just about infrastructure. Given that western leaders like former British PM Tony Blair or former US president George W Bush can walk freely in the US or UK despite launching the Iraq war for instance, means that the quest for justice is about commitment, not just an ability to do so.

But therein lies the biggest tragedy of the lot.

In deciding to pull out of the ICC on such tenuous grounds, South Africa becomes no better than other nations that have already undermined the integrity of its ambitions. There was no public debate or discussion over the decision. There was no consultation. In so doing, South Africa inflicts a violence of its own.

* Essa is journalist at Al Jazeera. He is also co-founder of The Daily Vox

** The views expressed here are not necessarily those of Independent Media.

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