Government’s decision to pull out of the Rome Statute and by implication the International Criminal Court (ICC), marks a definitive break with the legacy of Nelson Mandela. SA’s liberation icon championed a foreign-policy posture based on human rights. But it is an ideal with which the ANC has grown increasingly uncomfortable. And it is one it has honoured more in the breach than the observance.
We give Robert Mugabe a free pass when he stomps on Zimbabwe’s opposition and steals elections; we pander to China by blocking the Dalai Lama from crossing our borders; we abstain from a UN Human Rights Council vote on sexual orientation (despite being the first country to enshrine gay rights in its constitution); and we allow Omar al-Bashir, the Sudanese dictator wanted on charges of genocide, to slip out of SA in violation of our international duty to arrest him.
SA’s exit from the ICC has seemed inevitable since the Al-Bashir debacle. But why now?
After all, it was June last year when Al-Bashir visited SA to attend an African Union summit. One week before his arrival, international relations & co-operation minister Maite Nkoana-Mashabane, published a notice stipulating that his visit would be protected under the Diplomatic Immunity & Privileges Act, which grants immunity from arrest to a head of state.
But as there was an ICC warrant for Al-Bashir’s arrest, the nonprofit Southern African Litigation Centre took the matter to court. Predictably, it led to yet another crunching legal embarrassment for the government of President Jacob Zuma. The high court in Pretoria ruled not only that SA had an obligation to arrest Al-Bashir as international criminal law trumped diplomatic immunity, it also instructed the state not to allow Al-Bashir to leave.
Government, showing the sort of disregard for the courts that has characterised Zuma’s tenure, took the matter to the constitutional court, which is expected to pronounce on the matter next month. Last week, government withdrew its case.
It’s clear it withdrew the case because it feared the constitutional court would uphold the ruling, thereby compelling SA to fulfil its ICC obligations.
Far better, then, to simply opt out of the ICC. So on October 19 Nkoana-Mashabane signed the withdrawal notice, which will take effect in a year.
The official reason for withdrawing from the Rome Statute, under which the ICC was created in 2002 to ensure accountability for mass murderers and crimes against humanity, is that it conflicts with SA’s endeavours to negotiate peace in Africa.
Justice minister Michael Masutha tied himself in knots arguing that the statute was "inconsistent with" SA’s Diplomatic Immunities & Privileges Act. Interestingly, this law was initiated by president Thabo Mbeki and enacted a year before parliament not only ratified membership of the Rome Statute, but passed SA’s own ICC Act.
The ICC withdrawal is being challenged by the Democratic Alliance — and it may very well have been unprocedural. But there’s no doubt that government could fix that by simply getting the ANC in parliament to rubber-stamp its decision.
SA will join such dubious company as Burundi, a security state renowned for cracking down on the media and stifling liberties, in abandoning the ICC. Cynics will see this as just another landmark in the Zuma-led journey to becoming an unaccountable security state.
It is notable that SA has not accused the ICC of "lacking legitimacy" or of "only indicting African leaders" — a charge made frequently by other African states.
This isn’t without justification. It is true that of the 10 cases before the ICC, nine are from Africa. But only one, Al-Bashir’s, was initiated by the UN Security Council. The rest were "self-referred" by African governments.
Another valid criticism is that three permanent members of the UN Security Council — the US, Russia and China — are not members of the ICC and are likely to veto any attempt to prosecute their allies. For example, Syria’s Bashar al-Assad is backed by Russia and Israel by the US.
But as true as this is, it’s no good reason for African states to abandon a tribunal which former UN secretary-general Kofi Annan described as a "giant step forward in the march towards universal human rights and the rule of law".
The decision of Zuma’s government to quit the ICC is narrow and self-serving. The truth is, it could not abide the prospect of another humiliating constitutional court rebuke for failing to honour its obligations. But sadly, this is entirely consistent with its general retreat from the ethical high ground reached by Mandela.