On October 11, 2015, South Africa’s ruling party, the African National Congress (ANC), announced its intention to withdraw South Africa from the ICC. South Africa was one of the major African proponents of the creation of the ICC and one of the first to sign and ratify, and include its standards in its domestic law. With South Africa’s global role as a moral leader slowly waning in the post-Mandela era, this shift in attitude about the ICC proves worrisome if it indeed happens. The South African image of being advocates of human rights hangs in the balance.
According to the Rome Statute, Article 127, “A state party may, by written notification addressed to the Secretary General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.” (Article 127(1) Rome Statute) With regards to their obligations: “A state shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have been accrued” (Article 127(2) Rome Statute) In essence, while South Africa may withdraw soon they will still be party members until a year after their request for withdrawal which will still hold South Africa accountable.
South Africa’s announcement comes after its failure to detain Sudanese President Omar Al-Bashir. The ICC issued a warrant for the Bashir for war crimes, crimes against humanity, and genocide and with South Africa a party member it had an obligation to detain him. Upon the announcement, ANC representative Obad, stated that the ICC had lost its direction and that powerful nations “trample” human rights and pursue “selfish interest” alluding to the targeting of African nations by the ICC since its inception.[i] South Africa power in the AU provides a worry that this could lead to a potential “African-wide walkout from the court.”
The rhetoric of an ICC bias towards African nations has been long standing. According to The Guardian, President Zuma stated: “In the eyes of the African Leaders, the ICC is biased. Only Africans they are interested [sic]. This is what has made Africa feel we need to relook at our participation. It looks like it is just meant for us” (Musker, 2015). President Zuma appears to be neglecting the ICC’s current investigations in non-African countries such as Colombia, Georgia, Honduras, Iraq, Palestine, Afghanistan, and Ukraine. The African bias argument also fails to have a complete understanding of the court system. Of the eight cases the ICC has pursued in Africa thus far two have been referred by the United Nations Security Council-Sudan and Libya- and four have been self-referrals, in which the state involved has requested the assistance of the court-the Democratic Republic of Congo, the Central African Republic, Uganda and Mali. Article 13 of the Rome Statute, states that the court has jurisdiction if: “(a) A situation in which one or more of such crimes (outlined in Article 5) appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;(c) The prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.” (Article 13 (a)(b)(c)).
Currently, the South Africa situation is fluid as a result of attacks by both domestic and International civil societies against the decision and the impending result in the Assembly of State Parties meeting in November.
Written by: Chinonye Alma Otuonye
Kersten, Mark (2015). Sudan, South Africa and the Future of the International Criminal Court in Africa. The Washington Post. Retrieved from https://www.washingtonpost.com/blogs/monkey-cage/wp/2015/10/13/sudan-south-africa-and-the-future-of-the-international-criminal-court-in-africa/
Musker, Saul (2015). Why South Africa is Wrong to Leave the International Criminal Court. The Guardian. Retrieved from http://www.theguardian.com/world/2015/oct/14/why-south-africa-is-wrong-to-leave-the-international-criminal-court
Nkosi, Milton (2015). What South Africa Leaving the International Criminal Court Would Mean. BBC News. Retrieved from http://www.bbc.com/news/world-africa-34509342
Pizzi, Michael (2015). South Africa threatens to Withdraw from ICC, Alleging Anti-African Bias. Al Jazeera America. Retrieved from http://america.aljazeera.com/articles/2015/10/12/south-africa-threatens-to-withdraw-from-icc-alleging-anti-african-bias.html
Styrdom, TJ (2015). South Africa Plans to Leave International Criminal Court. Reuters. Retrieved from http://www.reuters.com/article/2015/10/11/us-safrica-icc-idUSKCN0S50HM20151011
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 27 October 2015]