Justice interrupted: The true cost of SA rejecting the ICC

Burundi announced on Wednesday it would withdraw from the International Criminal Court (ICC)‚ making it the first country to do so. A day later‚ South Africa delivered a notice to the United Nations expressing it would do the same.

Burundi’s President Pierre Nkurunziza has controversially clung to power in a reign of fear and seeming impunity‚ plunging the country into an ever-deepening political crisis that has been sparking alarm amid human rights defenders.

In its swift pursuit to also withdraw from the ICC‚ South Africa has chosen a strange bedfellow in Burundi. South Africa’s stature as a supporter of human rights is at stake – and the decision comes at a time when‚ domestically‚ the rule of law is under severe strain given recent decisions and internal politics.

“South Africa’s decision – and the manner in which it was done – casts a shadow on its long-standing history of championing human rights and fighting for a democratic society‚” says Allan Ngari‚ a researcher at the Institute for Security Studies (ISS).

There are two main areas of concern‚ the first being whether South Africa’s announcement to withdraw is legal‚ according to ISS director Anton du Plessis.

“South Africa’s decision to withdraw was not approved by Parliament. Legally‚ ratifying a treaty has to happen through parliamentary processes. It logically follows that withdrawal would require the same.”

The second area of concern is the political aspect. “We hope this is not a political move‚ considering the implications of the upcoming Constitutional Court hearing in November on the al-Bashir matter‚” says Du Plessis – referring to the 2015 visit to South Africa of Sudan’s President Omar al-Bashir to attend the African Union Summit in Sandton.

The North Gauteng High Court and Supreme Court of South Africa ruled that South Africa was under an international law obligation to arrest al-Bashir‚ who is wanted by the ICC for alleged war crimes‚ crimes against humanity and genocide committed in Darfur.

South Africa and other African states parties have increasingly expressed concern over the interpretation of the Rome Statute. Most notable is the contestation that heads of state ought to be immune from prosecution at the ICC.

South Africa’s withdrawal from the ICC would not only deal a costly blow to international criminal justice‚ but it would also mean that South Africa is turning its back on hopes to bring about the reform at the ICC that African states so urgently want to see.

The ICC should not be a court of first resort; ideally prosecution for international criminal justice cases should happen in national courts. But this is rarely possible‚ especially when powerful political figures – such as al-Bashir – are accused. International mechanisms are necessary to deliver justice when national courts are not able to do so. This is why regional and international courts like the ICC are crucial.

“South Africa has played an important role in establishing the ICC and leading processes for reform‚” says Du Plessis. “It must continue to play the role of promoting international criminal justice and to reform the court‚ not abandon it.”

This would be the most damaging scenario for South Africa‚ the continent and‚ above all‚ the victims of international crimes.

 

 

– TMG Digital

 

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