SA risks exchanging one flawed system for another if it leaves ICC
There are many challenges with the proposed African court, including immunity for sitting heads of state
Calls for an "African court for African people" are continuing after the ruling by the High Court in Pretoria in February that SA’s notice of withdrawal to the International Criminal Court (ICC) was unconstitutional and invalid. In compliance with the court order, SA revoked its notice of withdrawal to the ICC on March 8.
To an international audience, this action might appear as though the government has changed its position on leaving the ICC. But domestically, it is simply — and correctly — understood to be the government’s attempt to rectify the originally invalid notice of withdrawal, which was taken by the executive without parliamentary approval.
An unintended consequence, however, is that this presents an opportunity for civil society to engage with Parliament on the question of whether SA should leave the ICC.
The idea of African justice for Africans raises questions: what does the international criminal justice landscape look like and what do African leaders have to offer their people on credible African courts with criminal jurisdiction?
The ICC was established to bring justice for the victims of genocide, war crimes and crimes against humanity. It was designed to function in a manner that is complementary to domestic justice systems, intervening only when states are unwilling or unable to deliver justice.
Thus far, the ICC has greatly developed international jurisprudence on crimes that shock the conscience of humanity and has delivered justice to victims in the Democratic Republic of the Congo, Central African Republic and Mali.
Although trials at the ICC take several years to finalise, the court serves as a deterrent to would-be perpetrators and provides hope for accountability. Established in 2002, the ICC is a young court that has much to do and a long way to go. Yet it remains as an important symbol of a global commitment to provide justice for atrocity crimes.
However, the ICC has been accused of targeting Africa, of inefficiency and of procedural trial irregularities. The first allegation stems from the fact that a vast majority of its trials concern situations in Africa. Although many of these cases came about as a result of independent African governments electing to make use of the ICC’s self-referral mechanism — for example in Uganda, the Democratic Republic of the Congo and Central African Republic — this reality has not been enough to placate ICC detractors. Neither has the fact that the ICC is conducting preliminary examinations into situations that involve the US, the UK and Russia.
There are other dynamics that fuel allegations of bias, especially concerning the powers of the UN Security Council to veto, refer and defer situations to the ICC. Three of the five permanent members of the council — Russia, China and the US — are not signatories to the Rome Statute, which established the ICC, yet they have the power to control who is referred to the court and who remains out of its reach. Political games designed to protect national interests are at play here and these jeopardise the legitimacy of the ICC’s work.
Situations in Libya and Sudan were referred to the ICC by the Security Council and are prime examples of what is called "selective justice". Despite the problems caused by the council’s referral and the bitter complaints from African leaders, the most useful solution would be for states party to the Rome Statute to push for amendments to the statute itself.
However, such solutions have yet to be engaged. Other solutions include reforming the Security Council, which would be useful, given that it reflects Cold War dynamics that no longer serve the UN or the majority of its membership. Such reform has been met with significant resistance from the five permanent members, who wish to consolidate their powers, and so is unlikely to happen anytime soon.
Having realised that waiting for Security Council reform is akin to waiting for Godot, African states and the AU are looking for an "African solution to African problems". This includes creating an African court with criminal jurisdiction to try genocide, war crimes and crimes against humanity, among others.
Such a noble and important endeavour is reflected in the AU’s 2014 Malabo Protocol. It extends the jurisdiction of the yet-to-be-established African Court of Justice and Human Rights to include crimes under international law and transnational crimes.
There are many challenges with the proposed African court, the biggest being the inclusion of immunity for sitting heads of state and senior government officials. This means that victims of international crimes would have to wait until the suspected perpetrator is out of office before he or she can be brought to trial.
In many African countries, the idea of "president for life" is firmly entrenched. For example, President Teodoro Obiang Nguema Mbasogo of Equatorial Guinea has been in power since 1979, while President Omar al-Bashir of Sudan has held his position for 25 years. Waiting 25 to 30 years for justice is untenable, as memories fade, evidence disappears and victims and witnesses die. By contrast, at the ICC, as in many domestic jurisdictions, no one is above the law.
The Malabo Protocol requires 15 ratifications to come into effect and currently has only nine signatories. Even if it does come into existence, there are unanswered questions about its funding, human capacity and structure. While it is an important idea, much still needs to be done before one can talk of a credible and feasible African court.
The lack of regional criminal justice and the opportunity to constructively engage with the ICC to find solutions make the South African government’s insistence that abandoning the ICC is best for the country all the more curious.
By leaving the ICC, SA faces a loss of moral high ground as a defender and promoter of human rights. If the Malabo Protocol is adopted with the guarantee of immunity to heads of state — in contrast to the ICC’s repudiation of immunity — it will inspire fear that the protocol is intended principally to shield Africa’s "big men" from prosecution. This is likely to leave SA’s international reputation in tatters.
By remaining with the ICC, SA is able to declare its respect for human rights and motivate for amendments to the Rome Statute. Influencing change within the Security Council is, however, likely to face serious pushback.
Demands of accountability and justice do not necessarily impede the pursuit of peace, as is sometimes claimed by the ICC’s detractors. In reality, complex peace negotiations often demand a delicately calibrated carrot-and-stick approach.
In taking the stick off the table, as SA does in seeking to withdraw from its ICC obligations, incentives to bring perpetrators of political crimes to peace talks are weakened.
For example, the indictment of Charles Taylor, then president of Liberia, was critical to the avoidance of further bloodshed and violence in West Africa.
Supporters of SA’s withdrawal complain that influential big states are able to use their Security Council powers and positions to protect themselves, ensuring that they are never held accountable for atrocity crimes while others are.
SA sought to cure this defect in its own laws by domesticating the Implementation of the Rome Statute of the International Criminal Court Act in 2002. This gives SA the power to prosecute any person — regardless of their nationality — for genocide, crimes against humanity or war crimes if that person visits the country after committing such crimes.
On March 13, in a surprise but positive move, Parliament withdrew the ICC Repeal Bill. It is difficult to ascertain whether this action represents a reaffirmation of the commitment to international justice or MPs who recognise the flaws in the bill.
What it means, perhaps temporarily, is that we can continue to hold individuals accountable for atrocity crimes. Parliament may still need to deliberate and take a decision on whether to pull SA out of the ICC.
• Ramjathan-Keogh is the executive director of the Southern Africa Litigation Centre and Mudukuti is an international criminal justice expert
• This article draws on an earlier piece by Nicole Fritz which appeared in the Daily Maverick in October 2016.