News24.com | Oscar van Heerden | Why I still believe the sooner we exit the ICC, the better

In 2016, Oscar van Heerden gave five reasons why he thought South Africa should withdraw from the International Criminal Court. He writes that, in light of recent developments, he still stands by those reasons.

Supporting South Africa's withdrawal from the International Criminal Court (ICC) in 2016, I penned an opinion piece in which I argued why I believed this would be a good decision.

I think it is important to reflect on this article again, in light of recent events, specifically around the issuing of an arrest warrant for President Vladimir Putin of Russia, and the pressure that has brought to bear on South Africa to give effect to it.  

I still stand by what I wrote in 2016, published below with a few amendments: 

"At the current juncture, our thinking and argument about anything in South Africa takes the form of a binary code. It's good vs evil; Hillary vs Trump; #FeesMustFall vs police brutality. Under threat, concerned, angered and frustrated, we pick our sides and hold our positions. Our opinions spew forth in a hurricane of tweets, posts and short video clips. It's black or white, with no room for grey or nuance. There is certainly little room for any dissenting views.

Take the recent announcement of our South African government to exit the Rome Statute of the International Criminal Court. The argument is clear. This is our evil Zuma (Ramaphosa) government doing something... another really bad thing. I mean the ICC is for prosecuting gross human rights violations, genocide and war crimes. I know for sure that those are prime evil, so choosing to withdraw from the ICC must mean our government supports that kind of thing. Holy smoke. How is that possible? I just don't get it. If anyone still talks about us going down the tubes, this waterslide is now down in a deep level mine shaft. The end is nigh!

Hold your horses. Let’s back up a little. Hold it steady and think a bit: Is this another binary code?

Matters of statecraft within the international system are a little more complex than the simple binaries of right vs wrong; black vs white, good vs evil.

As a scholar of international relations, I support South Africa’s withdrawal from the ICC. Here is why:

• I recognise and abhor the duality that exists in the global international system to which the ICC contributes.

The ICC does not operate in isolation and is part of a global international system. International relations post-World War 2 have taken on a duality in the application of rights and responsibilities. In short, the more powerful countries (the victors of WW2) have configured global institutions in a manner that benefits them and not the rest of the world.

To illustrate, the United Nations Security Council (UNSC) is configured to have five permanent members (United States, United Kingdom, Russia, France and China) who have the final say over all decision-making on global security affairs. These permanent five each hold a veto power, which they can use to stop any decision with which they disagree. The World Trade Organisation (WTO), the International Monetary Fund (IMF) and the World Bank (collectively referred to as the Bretton Woods Institutions) represent the same duality. They agreed that the IMF President could only come from the EU and that the head of the World Bank can only come from the US. But that's another argument for another time.

READ | ANALYSIS: The ICC has issued an arrest warrant for Putin. What does this mean for SA

A good example of how these UNSC veto powers play out is the matter of 'rape as a weapon of war'.

During South Africa's first tenure as a non-permanent member of the UNSC in 2006-2008, a resolution was sponsored wanting to declare rape as a weapon of war. Most parties in the UN Security Council were in support of this resolution, except the US, which wanted their armed forces stationed all over the world to be exempted from this crime. As a result, the resolution was never passed. The sheer gumption of the US to think that they can get away with such duality was insulting in the very least. The US did eventually agree to also be subjected to this resolution, but the fact that they thought they could simply be exonerated from it speaks volumes.  

My point here is that the ICC is an extension of that duality which is represented starkly when examining which nations are signatories to the Rome Statute. It should also be borne in mind that many African countries have been cajoled and 'strongly encouraged' to sign the statute by some of their former colonial masters and stronger trading partners. Just like they are now threatening most countries of severe consequences should they want to exit from the Rome Statute?

Most revealing is the long list of countries, which either have never signed the statute or, after initial willingness, have failed to have their membership ratified. By exiting the ICC, South Africa joins the United States of America, China, Russia, Israel, India and Pakistan, to mention a few. There are 103 countries which have ratified the Rome Statute, however.

• The ICC has not acted or voiced concern relating to numerous global war crimes, genocide and human rights abuses.  

A layperson could be forgiven for assuming that the ICC is a body set up to enforce international law pertaining to gross human rights violations, war crimes and genocide, and that what applies to one global player will apply to all. Not so with the ICC in its current form. To the contrary, the ICC only acts on cases that pertain to the signatories of the statute.

Not only does it not pursue violations that occur globally, it does not even express itself or not any concern relating to atrocities committed by non-signatories.

Let me give some examples. The ICC was silent when the United States invaded Libya and, by proxy, resulted in the killing of Muammar Gaddafi; it was silent when the US and the UK invaded Iraq, which led to the killing of Saddam Hussein; and to think this was done on the pretext that there were weapons of mass destruction, and no action was taken against former US president George Bush nor former British prime minister Tony Blair; it remained silent when the United States intervened in Syria to overthrow Bashar Hafez al-Assad’s Syrian government by assisting rebel forces in that country. The ICC neither acted on nor condemned Russia's involvement in the Ukraine (back in 2014); and was similarly silent on the involvement of France in many of its former colonies in North Africa, Cote d’Ivoire, Mali and Central African Republic, to mention a few.

READ | Presidency, ANC retract comments that SA will exit International Criminal Court

All of these examples have not even been mentioned by the international prosecutor of the ICC of possible relevance to its work and upholding international law as it relates to gross human rights violations. All will argue the world is well rid of the likes of Gaddafi, Saddam and others, but at what cost to their respective countries? These countries, till today, remain blood baths, killing fields for their citizens; women and children cannot find peace because of these interventions by outside countries.

I am sure any reasonable person must question the global value of the ICC. This is a court that applies its rules to some and not to others in the global arena, simply because others are non-signatories. Or these countries can exert the necessary pressure on the ICC and its officials, so that they are never in the limelight of the remit of the court.

• The ICC is structurally flawed and inconsistent in relation to who can bring cases to its attention

The Rome Statute makes it clear that governments of respective signatory countries are the only rightful plaintiffs at the ICC. The reasonable person may be forgiven for assuming that, as such, only governments of signatory countries are able to bring cases to the prosecutor to lay charges against one of their own. In fact, this argument is frequently used to indicate that the court is not biased towards any particular country and/or continent. The reason that the majority of cases before the ICC concern African states, is because African governments themselves have brought these charges. The ICC itself does not choose whom to prosecute; rather the respective governments of the signatory nations bring cases to them.

It is not quite so straightforward, unfortunately.

There is an important caveat in the Rome Statute that indicates that the permanent five members of the UN Security Council can also tell the court whom to charge. Remember that Russia, China and the US are all permanent members of the UNSC, but not signatories or have not ratified membership to the ICC. In other words, non-signatory countries can instruct the ICC to prosecute others in the world. This, in itself, conjures up numerous legal ramifications that many jurists have been preoccupied with over the years. A select few non-signatory countries are able to influence and determine the fate of signatory countries. In other words, they don't want to be held accountable under the Rome Statute themselves, and yet they can be referee and player with the lives of others.

This was the case with the prosecution of Sudan's Omar al-Bashir. This case was brought to the ICC by UNSC (which includes non-signatory countries). The further irony of this specific case is that Sudan is also one of the countries that have not ratified the Rome Statute. What makes this situation even more curious was that neither plaintiff nor the defendant were signatories to the statute. It was, however, South Africa's failure to arrest Al-Bashir when he was present in our country, and not the obviously duality at play in the ICC, which made the headlines. Notwithstanding the correct argument by our government of the contradiction that exists between two sets of legislation in this regard: that of customary law protecting diplomats and heads of states against prosecution by means of ‘diplomatic immunity’ and the Rome Statute attempting to overriding this law. Our courts have since ruled that indeed the Rome Statute overrides the Vienna Convention with regards to 'Diplomatic Immunity'.

• ICC judges are not required to have a legal background

The make-up of the court is perhaps also of relevance when discussing the need to be or not to be a signatory. There have been many legal scholars that have taken issue with the fact that one would think an esteemed institution, such as the ICC, would have the best legal minds as its judges. And yet this is not always the case. Many of the judges over the years, in fact, have no legal background at all. Imagine our highest court in the land - the Constitutional Court - being presided over by non-legal minds?

• I don't believe that justice should trump peace

In the letter that the South African government sent to Ban Ki-Moon at the United Nations back in 2016, indicating its intent to withdraw, it states: "The RSA has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the ICC."

The clearest examples in 2016 of attempts at peaceful resolutions, scuppered by ICC processes are the cases of Sudan and Cote d’Ivoire. In both instances, the South African government was intimately involved in finding lasting peace in these war-torn regions.

In Sudan, there was civil war between warring factions in the North and the South, in which the South wanted to be their own governing territory. Al-Bashir was one of the leading protagonists and, as a result, a key stakeholder in the negotiations process to find a lasting solution to the killings in that region. The UN Security Council – not the government of Sudan – deemed it important and necessary to instruct the ICC to charge Al-Bashir with war crimes regardless of the peace efforts under way in the region. Needless to say, adding fuel to an already very volatile situation, one questioned the timing of such actions by the ICC and indeed the intent by some of the permanent five UNSC members.

Similarly, in Cote d’Ivoire, warring factions were involved in a protracted civil war. Again, African Union efforts in general and South Africa in particular sought to broker a peace deal. However, these were undermined when, following a flawed election, the opposition forces to Laurent Gbagbo, aided and abetted by the French military, came to power. When they 'won' the election, they laid charges against the former president Gbagbo at the ICC. All this happened while South Africa made a genuine request to the ICC to please consider the timing of the charges because of the sensitivity of the peace deal, but to no avail. Charges were instituted and Gbagbo arrested. The country remains in turmoil to this day.

The timing, yet again, with regard to the current arrest warrant for Putin, is suspect. 

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The speed with which it came about, while there have been a number of cases before the court for years already, but perhaps because it involves Israel and the US, it's obviously on the back burner. 

Central to the South African government's decision to withdraw is a nuanced understanding of the politics of war and retribution; and how this plays out in negotiations for peace. Peaceful resolutions are applauded the world over, but are seldom initiated by the powerful nations. Theirs is the hard-talk, tough-action domain of military incursions, drone attacks, regime change and weapons of mass destruction politicking. This is a far cry from the soft power approaches of talk-about-talks, peace accords and negotiated settlements. I am happy to debate about which approach leads to better human rights outcomes for the citizens of particular countries. But I digress.

The pertinent question that must be resolved here is which is a more effective means to reach the goal of halting carnage, killings, trauma and all associated ills of war: negotiations for lasting peace, which may require compromise from key protagonists, or the exertion of justice on one or two leaders? This choice of means to a common end (of reducing war crimes, gross human rights abuses and genocides) is at the crux of South Africa's decision to no longer be party to the ICC. 

This, by the way, is also in keeping with the SA government's position of non-alignment in the current Russia-Ukraine war. Condemning either party means you are taking a side, which means you cannot, at any stage, be an honest broker if, indeed, talks does occur. At the same time, SA is wanting talks, and negotiations to take place in order to end the war, which is not good for either country.  

The South African 'miracle' of a negotiated settlement that led to a new democracy would not have been possible if we had sought to exert justice against the apartheid regime (FW de Klerk, PW Botha, Magnus Malan, and Adrian Vlok, not to mention their henchmen). The negotiation process would have been scuppered and grossly undermined if these protagonists faced a possible ICC trial instead of a Nobel Peace Prize. We rightfully chose peace over justice in order to build a new nation free of all the associated ills of war.

Any peace-loving South African surely must be able to see and agree, given our own experience, that peace surely must trump justice, regardless of how evil the protagonist(s) may be.

Choosing to withdraw from an international body is not a decision taken lightly. But when that body operates as an exclusive club and hence only holds its member nations and not others to account, its functioning and purpose must be questioned, if outsiders can also determine what happens in the club. And if it is just the rules of the game that it can only hold its own members to account, when one member chooses to no longer be party to the club, who can stop them from leaving it? Surely, not outsiders? Our current UN system, of which the UNSC and ICC are an integral part, reflects a duality within the international system, where rules apply to some, but not to others.

The sooner we exit the ICC, the better. It is time to reject the duality of the UNSC, which finds expression, at least in part, through the ICC. It is now time to forge a new, more equitable and fair international accountability and legal system.

I'm afraid it is that same duality that is finding expression in this argument about our membership to the ICC. Everyone argues who will ultimately hold governments and their leaders responsible for wicked, cruel, gross human rights abuses, if not the ICC? I ask instead the question of who will hold those governments and leaders accountable that choose not to sign or ratify the Rome Statute?"

- Dr Oscar van Heerden is a scholar of international relations (IR), where he focuses on international political economy, with an emphasis on Africa, and SADC in particular.

*This is an amended article originally published on Daily Maverick. 

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