Why is South Africa Leaving the International Criminal Court?

On 20 October the South African government officially confirmed that it would be withdrawing from the International Criminal Court (ICC). This follows in the wake of last year’s dispute between South Africa and the court, after the government’s refusal to arrest Sudanese President Al-Bashir while he was in the country attending an African Union (AU) summit. While the announcement has not come as a surprise, there is concern about the fact that it has not been endorsed by parliament, which ratified the Rome Statute in 2000. Opposition parties have indicated that they will challenge the decision in court, raising further questions about the embattled ruling party’s commitment to the rule of law in a country that has experienced significant political turmoil in recent years.

The entrance of the ICC is seen in The Hague. Photo: Reuters

While official motivations for withdrawal have included claims by Justice Minister Michael Masutha that the country’s international law obligations should be aligned to domestic law, the main reasons are arguably three-fold. The first relates to criticism of the court’s bias against African states, which is undoubtedly justified. Since its creation in 2002 the ICC has, until this year, opened investigations into eight states, all of which are African. In January 2016, an inquiry was opened into Georgia, the first non-African case to be heard by the ICC. This issue is also linked to an increasing emphasis on South Africa’s African identity and its desire to act in solidarity with other African states. Since 1994, the new government has been at pains to overturn the legacy left by the apartheid regime and establish itself as first and foremost an African state. In addition to historically motivated reasons, strategic incentives also play a role. South Africa still largely lacks support from its neighbours for its global foreign policy aspirations, which are strongly dependent on its claims of being a legitimate regional leader and continental representative in various global fora. This has manifested in an unwillingness to criticise fellow African states for human rights violations, accompanied by a stronger expression of anti-Western sentiments by key policymakers and ruling African National Congress policy documents.

The second reason relates to the fact that the United Nations Security Council (UNSC) can refer cases to the ICC, despite only two of the five permanent members of the Council being members of the court. This resonates with broader concerns about the illegitimate and unrepresentative nature of decision-making in international institutions that South Africa gives voice to in its international relations. It must, however, be noted that except for one case that was referred to the ICC by the UNSC, the African cases were referred to the ICC by the states themselves. South Africa’s third motivation, in line with its preferred approach to conflict resolution based on its own negotiated transition, is based on the contention that prosecuting heads of state can undermine peace and stability in the long term, and that membership of the court impedes the country’s ability to act as a neutral mediator in the peaceful resolution of disputes. This argument was also used in defense of its decision not to arrest President al-Bashir, contending that his involvement in the Sudanese peace process was critical to ensuring a successful and long-lasting settlement.

While some have expressed concern about a mass exodus of African states from the court following South Africa’s announcement and an earlier AU proposal calling for collective withdrawal – particularly in light of the fact that about one-third of the court’s 123 members are African, it must be noted that there has been no binding AU resolution, and under the ICC’s founding Rome Statute, the decision to withdraw must be made by individual parties. Relatedly, while Kenya and South Africa have spearheaded the campaign for withdrawal, and South Africa’s announcement came just days after Burundi announced its intention to withdraw, some African states like Botswana, Cote d’Ivoire and Senegal remain resolute in their commitment to the institution.

South Africa’s decision to leave the court is troubling for two main reasons. Firstly, while some have argued that international criminal justice is primarily a matter for national and regional institutions, there is currently no alternative mechanism to hold individual leaders accountable in states that do not have the capacity or political will to prosecute individuals at the national level. The 2014 Malabo Protocol that expands the jurisdiction of the African Court on Justice and People’s Rights to include war crimes lacks legitimacy, with no ratifications to date. In addition, the Protocol has met with criticism from some corners due to the fact that it provides impunity for sitting heads of state and other senior government officials from indictment.

Of greater concern is what this recent move suggests about the future role of human rights in South Africa’s foreign policy. In light of its history of struggle against apartheid, the new democratically elected government committed itself to making the protection of human rights the focal point of its international relations. In recent years, the country has come under increasing scrutiny for the controversial approaches it has taken in, amongst others, the UN Security Council and the UN Human Rights Council, that have been seen as undermining the global human rights agenda. Most recently, it has been criticised for backtracking on its initial championing of LGBTI rights by supporting a statement by the African Group in favour of suspending the operation of the first independent expert on sexual orientation and gender identity. Relatedly, since its first democratic elections in 1994, the South African government has consistently affirmed its commitment to a rules-based, multilateral international order. While advocating for reform of what is perceived as an inherently unjust system of global governance, its approach has been to engage with institutions from within rather than to signal its dissatisfaction through withdrawal. The decision to officially withdraw from the ICC, and to call on other African states to follow its lead therefore can be interpreted as signalling a turning point in South Africa’s approach to reforming the international system. South Africa has now opted to reject the opportunity to exercise ideational leadership and drive a reform process through promoting continued constructive engagement between African states, the AU and the ICC.

In conclusion, South Africa operates in a complex multilateral setting, and the past two decades of democracy have seen it struggling to balance the different obligations emerging from its multiple identities. Under the Zuma administration, however, there has been a clear shift away from a liberal democratic identity that prioritises the promotion of human rights to a more pronounced African identity that emphasizes solidarity with fellow African and non-western states. The latest decision to withdraw from the ICC seems to further entrench this trend.