Article by Carien du Plessis, published on 3 September 2018 in the Daily Maverick.
Differences within government and the ANC about South Africa’s withdrawal from the International Criminal Court could mean that the parliamentary process now under way might yet come to naught – but don’t expect much open debate on this before next year’s general elections.
There’s a quiet shift happening in the ANC regarding its views on the International Criminal Court. While the sentiment that caused the party to resolve to leave the court in the first place still stands, the voices of those who want to effect reform from within, rather than leave, are more dominant.
At the party’s lekgotla in late July, discussions in the party’s subcommittee on international relations centered on a resolution on the issue made at the African Union summit in January 2018. The resolution followed the uproar that followed Sudanese president Omar al-Bashir’s attendance of the AU summit in Johannesburg in July 2015, when civil society groups took the South African government to court for not arresting al-Bashir. As a signatory to the Rome Statute, South Africa was obliged to arrest him as he had been charged with crimes against humanity, among others. Politically, however, this was next to impossible.
An ANC insider close to the discussions said the subcommittee agreed on South Africa following a process guided by the AU resolution.
This meant South Africa should, with other African governments, ask the International Court of Justice through the UN General Assembly to “provide us with legal clarity on the confusion on heads of states immunities” in the Rome Statute. South Africa should also continue to seek changes to article 16 of the Rome Statute on referrals and deferrals of ICC investigations. AU countries want it to be done by a special session of the UN General Assembly rather than the Security Council.
At the same time, the ANC subcommittee said South Africa should, in the context of the reform of the Security Council, make the point that all members, permanent or non-permanent, should also be a state party to the ICC.
These discussions don’t sound like the talk of the same party which, just about seven months before, repeated in a resolution at its conference at the Nasrec Expo Centre its resolve for South Africa to leave the ICC.
The party’s reasons were set out in a 2015 resolution of its national general council. In it, the party said it “opposes the double standards and selective actions of the International Criminal Court, and the fact that permanent members of the UN Security Council that are not signatories to the Rome Statute have unfettered powers with regard to referring cases to the ICC”.
South Africa was in June elected a non-permanent member of the Security Council for a third time and is pushing for reform of this body from within, which might also have something to do with this shift in stance on the ICC.
The ANC’s internal debate on the ICC is reflected in a difference of opinion between the departments of justice and international relations.
Justice Minister Michael Masutha supports the ANC resolution that South Africa should leave the ICC because its obligations as a member complicate its international relations.
Ironically, though, the department dealing with the outside world is in favour of South Africa remaining in the ICC. International Relations Minister Lindiwe Sisulu said at a briefing in early July 2018 that the decision to leave the ICC was taken “under the previous administration”, led by former president Jacob Zuma. Cabinet was still deliberating and a final decision has not yet been taken, she said. “Perhaps we might be married to staying in there if only to make sure that our voices are heard in the ICC.”
Masutha, however, told a conference on international justice in August, organised by the Wayamo Foundation and the Africa Group for Justice and Accountability that, although South Africa didn’t want to become the “haven of impunity”, the threat of arrest against al-Bashir meant that other heads of state were now reluctant to come to South Africa. The country’s diplomatic system “was being held to ransom”, he said.
Indian Prime Minister Narendra Modi initially refused to come to the recent BRICS summit after a South African group of Muslim lawyers threatened legal action against him for alleged crimes against humanity in Kashmir.
This had nothing to do with ICC processes, but perhaps Masutha was triggered by the free rein civil society had in this regard.
In a barbed comment, he said government had “no qualms about civil society asserting themselves”, because such litigation pointed out “flaws in our laws” – which by implication needed to change to allow people like al-Bashir and Modi to enter South Africa without fear of arrest.
A process is under way in Parliament’s portfolio committee on justice to withdraw South Africa from the ICC after a false start in 2016 when an over-hasty notice of withdrawal was issued without following procedures.
Insiders say the change of this committee’s chairperson – Vincent Smith replaced Mathole Motshekga last week – will not affect the process.
Opinions within the ANC, however, might. A high-ranking ANC insider said it wasn’t a good time to push openly for not following the ANC’s Nasrec resolution because President Cyril Ramaphosa’s detractors – those who supported Minister in the Presidency Nkosazana Dlamini Zuma for president – would accuse him of “ignoring the ANC”.
“Better let it stand and do nothing, and then change it after the elections,” said the insider.
Ramaphosa would have a popular mandate and the temptation for the Economic Freedom Fighters to pick up this issue, as it had done with land, would be lower. The first opportunity the ANC would have for officially backtracking would be its national general council, which should happen in mid-2020.
The official said while “the ICC is far from perfect… it’s the only show in town”. An African Court, he said, would not happen soon because the Malabo Protocol that effected it was unimplementable, there was a lack of funds and Africa would end up being the only continent with its own court.
A solid moral argument which the ANC could heed, came at last week’s conference from Justice Richard Goldstone, a member of the Africa Group and a former prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
“Anybody who reads the indictments against al-Bashir would be horrified at the evidence there is indicating that he gave the command and was responsible for the commission of genocide and murder of tens if not hundreds of thousands of people,” Goldstone said.
In 1973 the UN General Assembly declared apartheid a crime against humanity, and those countries that ratified this convention “became obliged to arrest and put on trial any leaders of South Africa who were guilty of the crime of apartheid”.
African and Middle Eastern countries signed it, but not one Western nation, because of trade with apartheid South Africa, Goldstone said. “South African leaders were free to visit the capitals of the rest of the world and enjoyed the red carpets rolled out because they were doing good business with South Africa.”
If South African leaders in the 1970s and 80s could not have travelled abroad because of fear of being brought to trial for the crime of apartheid, he had no doubt that apartheid would have ended a good decade or more before it did, said Goldstone.
“I believe that democracy should not welcome people accused of these sort of crimes,” said Goldstone. Just as South African apartheid leaders should not have been allowed to travel the world, so al-Bashir should not be allowed to travel