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Eusebius McKaiser: SA withdrawal from ICC a deep moral stain

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 Oct 23, 2016


We are joining many Western governments in abandoning a commitment to justice and protection of the weak, writes Eusebius McKaiser.

In the unlikely event that you have missed the big news story this weekend, you’d be mistaken for thinking I am taking the piss for what I am about to tell you.

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But here goes: the government has decided that diplomatic immunity for suspected war criminals is far more important than justice for the victims of war criminals.

Put differently, we have begun a process of withdrawing from the International Criminal Court (ICC). The executive is going to ask Parliament to repeal the domesticated law that made the Rome Statute part and parcel of our South African law.

On Friday, it was the turn of Justice Minister Michael Masutha to do the dirty work of defending the indefensible. That in itself was an interesting choice. Sure, the legal process of how we go about withdrawing from an international treaty is important.

But this isn’t fundamentally about law. It is a matter of international relations, political morality (or a lack thereof) and sheer geopolitics. You’d have expected International Relations and Co-operation Minister Maite Nkoana-Mashabane to be the one facing the press, and the public, but maybe she beat the minister of justice in a best-of-three game of rock-paper-scissors, giving her the opportunity to chill while he and his spokesperson made the case against prioritising human rights jurisprudence over diplomacy.

Let us examine each of the minister’s arguments presented for this decision.


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I must say that I expected the central premise of the government’s decision to be one that many have given as reason to leave the ICC before, that the ICC is inconsistent in how it treats suspected war criminals and war crimes, with a bias against Africans and a bias in favour of military and political leaders in the Global North.

I will shortly assess that particular claim, but I was surprised at how much the minister of justice made of the political awkwardness of our domestic laws requiring of us to arrest someone like Omar al-Bashir when he lands on our soil, which arrest is necessary because he is required to appear before the ICC.

Essentially the minister of justice was implying that diplomatic immunity ought to override a legal obligation to arrest a suspected war criminal. That is madness on multiple levels.

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Firstly, we should not be proud of wanting to protect war criminals and suspected war criminals from facing the music legally. Diplomatic immunity isn’t more fundamental, in terms of morality, than the rights of victims of war crimes. The moral calculus here should be obvious if you are operating with a moral compass that isn’t malfunctioning.

War criminals ought to be diplomatically isolated. They should be politically shunned. And we need not be embarrassed to set the standard high for who we deem to be desirable persons.

Diplomatic immunity when you are speeding through Sandton is one thing. But diplomatic immunity against a raft of suspected war crimes isn’t consistent with our professed domestic commitment to human rights jurisprudence.

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Frankly, it is nothing less than shocking and callous that a minister of justice should be so cavalier in rendering victims of war crimes invisible. Not only did he fetishisise diplomatic immunity, as if it cannot be critiqued, but he did not even bother to speak in any real detail about the millions of citizens in many countries across the world who need to be protected against war criminals.

Diplomatic immunity is an important tool in the bilateral relations between countries. But diplomatic immunity isn’t, on its own, sufficient reason to override more enduring, and much more urgent, justice-centred approaches to international relations.

peace and security

A second argument presented by the minister was even more bizarre than the uncritical analysis of diplomatic immunity.

He claimed, without substantiation, that being a signatory to the Rome Statute undermines our ability to help bring about peace and stability in the region.

The reason that this is an odd claim is that it wrongly implies that we do not have legal and political space to deal with conflict in the region specifically because we are signatories to the Rome Statute.

But that is simply false. Neither South Africa nor the AU is legally or politically hamstrung by the ICC to deal with regional conflict outside the framework of the ICC in the first instance.

Just as the AU could have dealt with, say, the crisis in Libya way before the UN passed resolutions which, by the way, we didn’t disagree with until after the fact, similarly the AU could have, if it had the temerity to do so effectively, helped to deal with conflict in the region through its structures.

We have a South African chairing the AU Commission. What was achieved?

Yet if you listened to our justice minister, and didn’t know better, you would think we genuinely face a hard choice between using the ICC to resolve complex legal cases involving violations of human rights abuses on a mass scale and using homegrown legal and political forums to do so.

That is a false dichotomy. The ICC is founded on a principle of complementarity that recognises the desirability of justice being done and being seen to be done in the geographies where the alleged violations of human rights took place.

In an ideal world, no cases should be brought before the ICC. The brutal truth, however, is that often governments and citizens from the African continent recognise the jurisprudential, structural and resource constraints, or sheer lack of political will, to deal domestically with these cases.

To conclude, however, as our justice minister has done, that there is a design flaw in the Rome Statute that undermines our commitment to help build peace and stability in our region is simply to stretch logic and truth.

Simply put, our government is lying about what the Rome Statute does and does not allow us to do, geopolitically.

And that is why it is crucial to recognise that withdrawing from the ICC won’t translate into greater prospects for peace and stability in Africa. If the AU hasn’t been able to deal with war criminals decisively despite the Rome Statue allowing it to do so, then there is no inherent reason to think that withdrawing from the ICC will make a difference.

The capacity challenges within the AU, and the complex Big Men politics that see old friends on the continent not having the guts to hold one another morally and politically accountable in a spirit of critical friendship, won’t disappear just because we have repealed the Rome Statute.

The government is, in the final analysis, dishonest about what the actual diagnosis of an under-performing AU is. Don’t blame international forums. Let’s blame ourselves for not taking seriously the much-punted mantra of “African solutions for African problems”.


The most serious critique of the ICC, and the criticism that will find some support among ordinary citizens of the country and our region is that the ICC appears to be inconsistent in how it treats crimes against humanity.

The ICC, some argue, lacks moral authority both because countries like the US are not signatories and because, and related to that fact, the likes of George W Bush and Tony Blair, say, aren’t dragged before the court to answer charges of initiating illegal wars in places like Iraq that have resulted in human rights violations, including the deaths of many thousands of people.

I think this is an enormously important criticism that has some pull and which deservers to be taken most seriously.

For one thing, the credibility and legitimacy of any legal or quasi-legal instrument or forum depends in significant part on how it is perceived by those who are subject to its powers and authority.

There can be no doubt that unless and until military personnel, commanders and political principals from North America and Europe routinely face the might of the ICC as often as thugs from other parts of the world, the legitimacy deficit of the ICC will proliferate.

But the nexus question for me is whether this consideration is anywhere near a decisive reason for our country to withdraw from the ICC. I think not, and want to outline several reasons why.

First, as I already mentioned, the ICC remains a useful forum for instances where we want to request it to deal with cases we do not have the capacity to deal with ourselves. Why take that option off the table? Often in post-conflict geographies, like a contested election in, for instance, Kenya that leads to claims and counter-claims about human rights abuses, it might become practically difficult to accurately assess serious claims about such atrocities in the aftermath of violence.

One need not outsource these cases but the option of doing so is useful to retain until the AU is better equipped to handle such cases routinely.

Besides, heads of state are wealthy and well-resourced. If they are innocent, they need not fear an imperfect ICC as they will be well represented in the legal processes.

Second, and much more important, is to address a bizarre implicit premise in this particular argument about the inconsistency of the ICC. Essentially what the critic is saying, if you puzzle through the assumptions lurking beneath, is that we should take our moral cue from places like the US.

In other words, unless and until Washington is willing to have its citizens tried in an international forum such as the ICC, the rest of us should not be prepared to champion and role-model the ideal of a global community of nations upholding international laws premised on a commitment to enforce minimal standards of moral decency in the actions of states.

But why should Washington or London be our guide? I mean, by that logic, we should follow Bush and Blair and start wars on the basis of spuriously thin evidence about weapons of mass destruction.

We should be building Guantanamo Bays everywhere, torturing inmates and developing euphemisms for describing what are we doing.

We have not done so precisely because mimicking the behaviour of the West isn’t what our best selves are about. And when we have flirted with such bad behaviour, our commitment to constitutional supremacy has kicked in to get us back to a path that is founded on respect for human rights.

What our government is now saying, however, is that it regrets the legal oversight provided by our domestic courts in South Africa. It doesn’t want to be held politically accountable by the standards of human rights jurisprudence. That is a deep stain on a democracy that is already reeking with stains from the arms deal stain, the Marikana stain, the Nkandla stain and the other stains we are not yet ridding ourselves of.

The international system is imperfect, and hypocrisy is found everywhere including at the UN, which ought to have been reformed many decades ago. But only a naive political animal will withdraw from forums until they are morally and functionally perfect. By that logic, we should leave the UN, and even the AU itself for that matter, because they are deeply flawed and imperfect forums.

We should be setting the standard for the West rather than lowering our standards to match their unflattering positions in world history, and international politics in particular.


Nothing in my criticism of the decision has appealed to the idea of a moral foreign policy. That is because I don’t think any country anywhere in the world genuinely is or should be committed to some romantic idea of a moral foreign policy.

States are self-interested, and that is a descriptive reality we cannot run away from regardless of the normative critiques of some civil society organisations who don’t always have adequate regard for realpolitik and geopolitics.

But it’s important to realise that disappointment with what was announced by the government isn’t based on apolitical sloganeering.

To be clear, I think it’s a strategic error we have made quite apart from the decision not being consistent with our domestic jurisprudence on human rights.

Strategically speaking, our place on the international stage would be much stronger if we championed the idea of holding all countries and leaders responsible for not respecting the human rights of their citizens.

If you adopt this posture you do not, however, prioritise your irritation with the West’s hypocrisy over the human rights of African citizens who expect of South Africa to demonstrate what it means to champion human rights on the continent.

So that, in terms of strategic analysis, we end up being respected less now both by leaders and countries in the Global North, and by citizens of the Global South.

The biggest supporters of the decision will be war criminals, and a small number of mostly middle-class critics of the West who do not routinely experience the human rights violations endured by the most vulnerable citizens on the continent like those of Sudan, Burundi and citizens who perished in the horror of 1990s Rwanda. Does our government care less for these Africans than their morally bankrupt elite leaders?

We are not doing better than the West. We are simply, without irony, joining many Western governments in abandoning a commitment to justice, and protection of the weak.

South Africans who think the government did the right thing today should think again. The Zuma-led government is simply continuing the domestic erosion of a commitment to constitutional supremacy. The securitisation of the state is being mirrored in the sense that the decision yet again shows that human rights are less important to the Zuma government than preying on citizens. It doesn’t take a sangoma to see the connection between our uncaring Zuma-led state and it’s local machinations and this withdrawal from the ICC. We ignore that link at our peril.

The government should be deeply ashamed of itself.

* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism - is now available nationwide, and online through Amazon.

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