Reaction: South Africa ICC withdrawal move

Last Friday’s announcement by the South African government of its intention to withdraw from the ICC has prompted condemnation from local, regional and international bodies.

African civil society

Many South African and African NGOs and academics were disappointed by the decision, some because of the affront it posed to many years of progress in the fight for global justice:

“South Africa’s purported withdrawal – without parliamentary approval or public debate – is a direct affront to decades of progress in the global fight against impunity … We call on the South African government to reconsider its rash action and for other states in Africa and around the world to affirm their support for the ICC.” said Stella Ndirangu of International Commission of Jurists-Kenya.

“The ICC remains an important pillar of international criminal justice and South Africa’s withdrawal from the only permanent international criminal court signals unfortunate disregard for human rights and the fight against impunity,” said Kaajal Ramjathan-Keogh, Southern Africa Litigation Centre executive director. “South Africa, formerly at the forefront of international criminal justice in Africa, has taken a retrogressive step that raises great concern about the government’s priorities with regard to matters of justice, accountability and the prevention of egregious crimes.”

“The decision by Pretoria to withdraw from the Rome Statute is a response to a domestic political situation. Impervious to the country’s political history and the significance of the ICC to African victims and general citizenry, the South African leadership is marching the country to a legal wilderness, where South Africa will be accountable for nothing,”  said George Kegoro of the Kenya Human Rights Commission.

“There is little doubt amongst independent journalists and civil society activists in South Africa that the motivation for the proposed withdrawal is political rather than legal, and that it is inextricably linked to the president’s own domestic issues. President Jacob Zuma is under extraordinary domestic pressure following multiple corruption scandals, widespread social unrest and a historically poor performance by the ruling party in the recent local elections,” write Anton du Plessis is the executive director of the Institute for Security Studies, a research organization based in Pretoria, South Africa. and Simon Allison is the Africa Correspondent for the Daily Maverick.

“I am concerned and disappointed at this regrettable action by the South African Government. The withdrawal is quite inconsistent with the provisions of the Rome Statute of the International Criminal Court Act, No. 27 of 2002 and hence unconstitutional and unlawful,” said Richard J. Goldstone, chair of the Coalition for the ICC’s advisory board. “I am confident that a South African court will so rule. It is an act that is demeaning of our Parliament and of the people of South Africa. From a moral standpoint, it detracts from the inspiring legacy of the administration of President Nelson Mandela that so strongly supported the ICC and all of the mechanisms of international justice.”

“South Africa must continue to play the role of promoting international criminal justice and to reform the court: not abandon it,” said Anton Du Plessis, executive director at the Institute for Security Studies. “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.”

“Now, more than ever, countries that believe in the rights of victims should affirm their support for the ICC. We should hear from Nigeria, Ghana, Ivory Coast, Senegal, and Central African Republic, among many others, on the importance of the ICC in Africa and globally” said Oby Nwankwo of the Nigeria’s national Coalition for the ICC.

Human Rights Watch (HRW) condemned the move in the strongest possible terms, saying that withdrawing from the ICC represented a betrayal of the victims of war crimes, crimes against humanity and genocide.

“South Africa’s withdrawal would be a huge reversal of its role as a leader promoting victims’ rights and the values in its post-apartheid constitution. It’s also unclear whether the South African government followed its own laws, not least because it did not consult parliament,” said Richard Dicker, International Justice director at Human Rights Watch. 

He continued by saying that a flawed system does not warrant turning away from international justice: “We need to strengthen the court’s delivery of justice and extend its reach to more countries. But the goal of justice, including redress and reparations for victims, is too important to throw away because of flaws in the global system.”

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes. It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored” said Dewa Mavhinga, HRW’s Africa division senior researcher.

Amnesty International agreed that such a move is a betrayal for victims around the world.

“South Africa’s sudden notice to withdraw from the ICC is deeply disappointing. In making this move, the country is betraying millions of victims of the gravest human rights violations and undermining the international justice system,” said Netsanet Belay, Amnesty International’s research and advocacy director for Africa.

Other bodies focused on how this move redefines the image of South Africa – a country that has since apartheid been seen as a leader in the fight for international justice.

Parliamentarians for Global Action (PGA) called on its South African members to make a stand against impunity:  “PGA Members from across the African continent and the rest of the world have chosen to stand up for justice and are asking their South-African peers to make sure that the withdrawal does not go through.”

“Withdrawing from the ICC is a deplorable and shameful way of dealing with victims of genocide, crimes against humanity and war crimes. South Africa’s actions create a deplorable stain on the country’s post-Apartheid reputation and credibility,”  stated Dimitris Christopolous, FIDH President.

Dicker agreed with this, stating that “African states played a foundational role in creating the ICC, which marked a significant shift towards ensuring that no one is above the law and everyone deserves justice.”

“With its history of injustice, South Africa under Nelson Mandela was a driving force behind the establishment of the ICC. Any withdrawal from the Rome Statute would reverse years of human rights progress. Opposition to the ICC has grown as it has implemented its role, mandated by 124 countries, to bring those most responsible for grave crimes – including high government officials – to justice,” said William R. Pace, convenor of the Coalition for the ICC. “Victims across Africa have called for justice time and again, either through national judicial systems or, when they fail, through the ICC. The Zuma government is demonstrating a terrible disregard for victims and the powerless in South Africa, throughout Africa and the world.”

“The voices of victims are often lost in the ‘ICC targeting Africa’ rhetoric and in discussions calling for head of state immunity. If states pull out from the ICC, a key avenue for justice for millions of people will be lost,” said Stephen Lamony, head of AU/UN advocacy and policy, Coalition for the ICC.

The ICC and other state actors

Sidiki Kaba, the president of the ICC Assembly of States Parties, has urged the South African government to reconsider its decision and “to work together with other States in the fight against impunity, which often causes massive violations of human rights.”

Although he recognized that withdrawal was a sovereign act, he called on both South Africa and Burundi to reconsider their position on the ICC.

The European Union and its member states said they “remain staunch supporters of the ICC.”

The government of Botswana has released a statement reaffirming its commitment to international justice and the Court:

“Botswana is convinced that as the only permanent international criminal tribunal, the ICC is an important and unique institution in the international criminal justice system. Botswana therefore wishes to reaffirm its membership of the Rome Statute and reiterate its support for a strong international criminal justice system through the ICC. The Government of Botswana does not, therefore, associate itself with calls for States Parties to withdraw from the Rome Statute. Botswana believes that such a move betrays the rights of the victims of atrocious crimes to justice and also undermines the progress made to date in the global efforts to fight impunity.”

The Canadian minister of foreign affairs said that Canada was “deeply troubled” by South Africa’s decision:

“All victims, including African victims, have a right to justice. The ongoing contributions of African states in support of the court are invaluable to make this justice a reality. That steadfast support is more important than ever today; we urge South Africa to reconsider. The International Criminal Court cannot be abandoned because it may not be perfect. Our answer must rather be to improve and strengthen it. We must not forget the thousands of children, women and men who have been victims of unimaginable atrocities and for whom the International Criminal Court, as a court of last resort, offers the only hope of justice.”

The French government also appealed to South Africa’s history of supporting human rights and urged it to continue in the fight against impunity:

“Together with its European partners, France expresses its concern and its regret at this decision. Indeed, the fight against impunity is key to making reconciliation and lasting peace possible. We urge South Africa, which is one of the founding states of the International Criminal Court and which plays an exemplary role in defending human rights, to reconsider its decision. We strongly encourage it to engage in a constructive dialogue on the functioning of the court and the international criminal justice system in order to explore ways to take its concerns into account.”

The government of the Czech Republic expressed its regret at the decisions of both Burundi and South Africa, announcing its intent to work with the international community to support the Rome Statute:

“The Czech Republic remains committed to fight against impunity and to bring to justice those who commit genocide, war crimes, crimes against humanity and crimes of aggression. We hope that both South Africa and Burundi will reconsider their position and will work together with the international community towards the universality of the Rome Statute. We believe that the International Criminal Court plays a crucial role in preventing commission of such crimes, prosecuting the alleged perpetrators and securing the rule of law at the international level.”

The Swiss government has also released a statement:

“The Court is an independent institution mandated to put an end to impunity. It embodies the principle that justice must be done and seen to be done in order to achieve sustainable peace, assure accountability, and contribute to the prevention of future violations. Against the backdrop of the multiplication of serious violations of international law and of the most basic principles of humanity in current armed conflicts, the decisions send a troubling signal. Switzerland underscores that the Court functions impartially. If many of its investigations concern situations in Africa, it is because Governments on the continent have repeatedly requested the Court themselves to investigate. In addition, the Court only acts as a last resort when crimes are not investigated and prosecuted by national authorities.”

The Dutch minister of foreign affairs argued that pulling out was not the right way to address the problems:

“The victims of international crimes deserve justice, wherever they live. If a country is unable or unwilling to prosecute such crimes, the International Criminal Court is a vital last resort for preventing impunity. The International Criminal Court embodies universal norms and values. African countries were closely involved in the negotiations on the Rome Statute and the establishment of the Court. To make the Court more robust and more effective we need Africa’s input now more than ever”