The South African government announced on Oct. 20 that it has begun the process of withdrawing from the International Criminal Court by revoking its ratification of the Rome Statute, which established the I.C.C. Government officials allege that the court has a bias against African nations.
The Southern African Catholic Bishops’ Conference has urged the government to reconsider its decision. In a statement signed by the head of the Justice and Peace Commission of the S.A.C.B.C., Bishop Abel Gabuza, the bishops say: “We reject the government’s argument that its obligations under the Rome Statute bring it into direct conflict with obligations to observe international diplomatic norms and standards, that include immunity.”
The bishops urged the South African government to use their influence to ensure that reforms to the I.C.C. are “effectively addressed” rather than withdrawing from it. This is an acknowledgment that the I.C.C. is not perfect and is in urgent need of reform. It needs, for example, to find ways of investigating and holding Western leaders accountable. Another proposed reform is a moderation of the United Nations Security Council’s decision-making processes, which often in practice prevent such investigations.
The S.A.C.B.C. also found the decision “unfortunate on ethical grounds.” The bishops said they were deeply concerned that a South African withdrawal will “influence and encourage other African countries to leave the court en masse.” They say that a large scale African withdrawal from the I.C.C. would be disastrous for thousands of vulnerable people on the continent who “in the future remain without adequate protection and remedies in the face of human rights violations perpetuated by a serving head of state.”
A number of civil society organizations are also planning to challenge the government’s decision. It is also not entirely clear whether or not the President Jacob Zuma’s government has the power to withdraw from the treaty that created the I.C.C. without parliamentary approval. In recent days there has been conflicting legal dialogue about the matter. There had been no previous public consultation or discussion regarding the decision to withdraw. The decision was made by a small political elite who, it seems, are acting in their own interest to avoid future accountability.
The South African government faced a dilemma last year when the Sudanese president, Omar al-Bashir—wanted by the I.C.C. for war crimes—attended an African Union summit in Johannesburg. The government urged diplomatic immunity for heads of state and claimed that that status trumped its obligation to arrest him. When public attention was drawn to his presence, Mr. Zuma’s government facilitated a swift exit for President Bashir.
Civil society organizations were in an uproar about this decision, and a case was laid against the government at the Constitutional Court, South Africa’s highest court. The case is expected to be heard in November, making the timing of the decision to exit the I.C.C. interesting, to say the least.
A number of officials who hold positions in the I.C.C. are from Africa, and the continent has generally benefited from its actions. A number of African countries have actually requested I.C.C. investigations, knowing that their own judiciaries were not robust enough to take on these cases. These include Mali, Libya, Central African Republic, Uganda and the Democratic Republic of the Congo.
South Africa had been an early signatory to the agreement establishing the court. Signing it was part of Nelson Mandela’s vision that the country uphold human rights and be an active member of the international community, a nation willing to stand for justice because of its own long struggle for justice against the apartheid system. South Africa’s move to support the court was also the impetus for other African nations to sign the agreement.
There has been some talk on the continent that Africa must develop its own regional court with the capacity to demand accountability from state officials and heads of governments. Although it has been proposed that a court on justice and human rights for Africa be established, it only exists on paper.
Part of the reason for that has been the unwillingness of African countries to fund continent-wide projects. The African Union gets more than half of its funding from foreign donors. The bishops have asked the Zuma government to remain in the I.C.C. until a regional court exists and is properly supported.
Even if a regional court came into being, the African Union recently decided that it cannot investigate and charge senior government officials. That means that African leaders could still get away with crimes against humanity even if there were such a court in Africa. The bishops say that the government should ensure that a regional court has “jurisdiction over serving heads of state and senior state officials.”
There are clearly two important issues at work in this debacle. First, on the legal front, it remains to be ascertained whether or not the government has the power to abandon the I.C.C. without parliamentary approval. This will play itself out in the courts—as are so many issues in the country at the moment. One could be excused for believing that the country is being run there.
The second issue is a political one. South Africa had a legal responsibility to uphold the Roman Statute that it is a signatory to. When Mr. Bashir came to the country, the government did not fulfill its international legal responsibility. It needs to be held accountable for this. Some legal experts say that even if the country did withdraw from the I.C.C., legal action should still be taken because at the time that Mr. Bashir entered South Africa the I.C.C. agreement was in force.
In their statement, the bishops final appeal to the A.N.C. in parliament was to “listen to their conscience and do the right thing when the bill relating to I.C.C. withdrawal is debated and voted upon.” They say this is a matter that requires that parliamentarians think beyond “partisan mandates.”
The lives of thousands of “our brothers and sisters in Africa will be left without adequate access to justice and reparation,” the bishops say, if South Africa withdraws from the court, and the A.N.C. must now, more than ever, take the moral high ground “that was its trademark during apartheid and stand in solidarity with the victims of human-rights violations in Africa.”
Political instability on the continent means that vulnerable people in Africa need strong protection from political leaders “who commit crimes that shock the conscience of humanity, namely genocide, war crimes, crimes against humanity and crime of aggression.”
The truth is that by abandoning the I.C.C., South Africa not only betrays an international institution that seeks to ensure justice but its own national sense of self. The A.N.C. fought for many years for that same justice it now seems willing to betray. In abandoning the I.C.C., South Africa also abandons the most vulnerable in Africa to corrupt politicians who lie, loot and kill to stay in power. This decision will mean that ordinary civilians will be more helpless and bear the brunt of corruption, and for some, it will even mean losing their lives.
Russell Pollitt, S.J., is one of America's Johannesburg correspondents.