What are SA’s obligations to the rest of the world if it leaves the ICC?

Many regard the creation of the International Criminal Court (ICC) as the greatest achievement in international law of the 21st century — the equivalent of the development of the Geneva Conventions in the 20th century.

The government’s recurrent threats to withdraw from the ICC, though not a shock, is a disappointment. It does not come as a shock because the ANC government has long shied away from accountability.

The ANC has not respected and complied with many of the human rights entrenched in SA’s constitution. The government has not shown respect for international law prohibiting and mandating the prosecution of serious international crimes.

This is evident from the government’s reluctance to prioritise the prosecution of apartheid-era crimes. This is evident from the long-standing tolerance for police brutality, which culminated in the Marikana massacre in 2012. Marikana is, of course, associated with the killing of 34 mine workers by police. It is, however, often forgotten that mine workers who were arrested after the massacre were tortured in police cells on the evening after the massacre. Yet no prosecutions followed.

There has also not been any accountability for the various instances of police brutality over recent years. SA has also not taken a strong stance towards international crimes committed in our neighbouring countries.

Torture is universally regarded as one of the most heinous crimes. It is not only the ICC statute that regards torture as a crime against humanity. The Geneva Conventions oblige a state party to extradite or prosecute in the case of torture. The government has routinely ignored this international obligation.

Should SA withdraw from the ICC, the state will still be bound by treaties such as the Geneva Conventions, the 1948 Genocide Convention, the 1984 Torture Convention and customary international law which binds all countries.

One of the most positive consequences of the ratification of the ICC statute is the fact that the domestication of the statute led to Parliament enacting a domestic statute criminalising torture and a statute criminalising genocide. When SA’s membership of the ICC terminates, its obligations under these treaties continue. It is not only the ICC Statute that prescribes international obligations that SA has to adhere to if it wants to be accepted by the international community as a country that takes humanitarian issues seriously.

There is a long list of obligations that SA needs to comply with under various international agreements as well as customary international law.

In light of the government’s lack of accountability on many levels, it would have ben a surprise if the ANC co-operated smoothly with the ICC. It is, of course, one thing to pay lip service and another to take action when such action clashes with one’s own interests.

There is no reason why the government would suddenly act responsibly in the context of the ICC if it routinely neglects and disregards other compelling international obligations.

Everything about its governance over the last decade points to prioritising African solidarity over the principles of the ICC. When it comes to the prosecution of international crimes, our allegiance to the AU is in direct conflict with the ICC.

This need not be case since the Constitutive Act of the AU respects the principle that international crimes should be prosecuted. The act states that the AU may intervene in a member state in the case of grave circumstances such as genocide or crimes against humanity.

The ICC is not the only route to impunity. In light of its inefficient track record over the last two decades, it is clearly also not the best conceivable route. If SA is serious about impunity but not willing to achieve this via the ICC, then it should throw its weight behind other initiatives to combat impunity.

Crucially, it should respect the international obligations contained in the treaties it has committed itself to observe. If states observed the obligations they already had before the creation of the ICC, those they have acquired since as well as the dictates of conscience, the ICC would have been superfluous.

Abandoning membership of the ICC does not release a state from its duty to uphold the rule of law and fundamental standards of humanity.

• Swart is Professor of International Law at the University of Johannesburg