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Comment on the Withdrawal Question: “In recent weeks, the governments of the Republic of Burundi, the Republic of South Africa, and the Islamic Republic of the Gambia have announced their intention to withdraw from the ICC. How will this affect the emerging system of international criminal justice in the short and long term? What steps might be taken to strengthen that project?”

muma2018
5019
January 18, 2017
11:19 am

The International Criminal Court should not Respond Politically to South Africa’s Declaration of Intent to Withdraw from the Court

If the International Criminal Court responds politically and negotiates with South Africa on the obligation to arrest, the Court will further threaten its credibility and set a negative precedent of political negotiations.

In the past few weeks three countries have declared their intent to withdraw from the International Criminal Court (ICC): Burundi, Gambia, and South Africa.1 While this is concerning on all three fronts, the issue of South Africa is more complex than the other two. Burundi and Gambia, two nations led by autocratic leaders, are likely withdrawing due to their imminent participation in gross atrocities and thus fear of being subject to future investigation and prosecution by the Court.2 However, South Africa states it is intending to withdraw because the Rome Statute is inconsistent with South Africa’s law that gives sitting leaders diplomatic immunity.3

South Africa was an early supporter of the Court, one of the first signatories to the Rome Statute, and played a significant role in the establishment of the ICC.4 However, when Sudanese President Omar Hassan al-Bashir visited the country last year, the government did not arrest him. The refusal to arrest could be viewed as South Africa signaling contempt for the Court, and seemed to further delegitimize the ICC. With South Africa’s withdrawal comes many daunting choices for the Court, one of which is opening negotiations about states parties’ obligation to arrest sitting heads of state. Although South Africa’s withdrawal has the potential to spark negative consequences, negotiating states parties’ obligations in order to avoid withdrawal has much higher costs.

Rather than negotiate with South Africa in regards to arresting sitting heads of state who are indicted by the ICC, the Court needs to stand its ground in the face of adversity and reaffirm states parties’ obligation to arrest under the Rome Statute. As a court of last resort, the ICC will often times be indicting people in positions of power; what message does it send to victims if those perpetrators are free to roam without worrying about accountability? This is a time for the ICC to show its strength and commitment to justice rather than its fear of South Africa withdrawing and the consequences that might have. Whatever actions the ICC takes in this situation will set a precedent for dealing with future threats of withdrawal. If South Africa’s obligation to arrest Al-Bashir is somehow negotiated, other states parties may think if they’re not happy with one of their obligations as a member of the Court, they can threaten to withdraw, and the ICC will adjust accordingly in order to keep them as a member state.

Although there is a chance that other African nations will follow in South Africa’s footsteps and withdraw from the Court, most notably Kenya, multiple African states and organizations have reaffirmed their support for the Court.5 Eight countries have spoken out about their commitment to the ICC and the fight for international criminal justice, as well as 24 African and international organizations.6 In the coming weeks, hopefully more countries will join in speaking out against South Africa’s decision.

While South Africa’s withdrawal may have negative effects in the short term, setting a precedent of political negotiations would be extremely damaging in the long term fight for international justice. The ICC does not have a mechanism to make arrests on its own, so it relies on states parties to do so; without this commitment, convictions would be near-impossible. As the self-proclaimed patron of peace in Africa, it is alarming that South Africa is not more concerned about holding al-Bashir accountable for his crimes in Sudan, and this seems to be a digression from the progress South Africa has made in promoting human rights.7

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Editorial Board, A Stronger Court for Crimes Against Humanity, N.Y. Times, Nov. 3, 2016, available online. ↩
2.
Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩
3.
Milena Veselinovic & Madison Park, South Africa announces its withdrawal from ICC, CNN, Oct. 21, 2016, available online. ↩
4.
Camila Domonoske, South Africa Announces Withdrawal From International Criminal Court, NPR, Oct. 21, 2016, available online. ↩
5.
Azad Essa, Africa’s withdrawal from the International Criminal Court reeks of hypocrisy, Wash. Post, Oct. 26, 2016, available online. ↩
6.
Human Rights Watch, South Africa: Continent Wide Outcry at ICC Withdrawal, (Oct. 22, 2016), available online. ↩
7.
Coalition for the International Criminal Court, Mandela legacy on the line as South Africa moves to leave ICC, (Oct. 21, 2016), available online. ↩

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muma2018: The International Criminal Court should not Respond Politically to South Africa’s Declaration of Intent to Withdraw from the Court If the International Criminal Court responds politically and negotiates with South Africa on the obligation to arrest, the Court will further threaten its credibility and set a negative precedent of political negotiations. In the past few weeks three countries have declared their intent to withdraw from the... (more)
magli: Do African ICC Parties Wish to Withdraw from the ICC? Let Them Leave! The purported withdrawal of a small number of African states from the ICC has created a rather unacceptably high degree of hype, which obscures the undeniable positive developments that the international criminal justice has achieved. International criminal justice is a project, which, for better or for worse, has been principally... (more)
kbanafshe: What are the Consequences of Withdrawing from the International Criminal Court? In the past decade millions of African lives have been lost; this is due to a series of gross genocidal campaigns and humanitarian crimes that have swiftly taken place across the nation. The integral role of the International Criminal Court (ICC) is to administer justice, punish perpetrators of crimes and deter future atrocities from taking place. That being said a number of critics... (more)
isaac.brown: The Registry Should Focus Outreach Efforts on States Parties at Risk for Withdrawal from the Rome Statute The Assembly of States Parties should provide more funding to the Registry for its outreach function. The registry should expand its operations beyond situation states to states parties seen as a risk for withdrawal. This outreach strategy should focus on States where the governments are sufficiently democratically accountable for public... (more)
Katelyn_Rowe: The ICC Should Investigate More Non-African Countries to Dissuade Other African Withdrawals Summary In order to dissuade additional African countries from withdrawing from the International Criminal Court, the Office of the Prosecutor should open more investigations in non-African countries, particularly Colombia, because this may counter the current geopolitical bias narrative that Burundi has used to justify its... (more)
Shirin.Tavakoli: Traditional Justice Mechanisms Can Satisfy Complementarity Summary The recent decision by the governments of South Africa, Brundi, and Gambia to leave the International Criminal Court (“ICC” or the “Court”) has created various reactions from the international community. One main reason that these countries’ notice to withdraw is significant is the fear that other African nations will soon follow their footsteps and... (more)
emrenslo: Sanctions as a Penalty for Withdrawing from the ICC Summary Targeted sanctions should be imposed by states parties of the ICC on the leaders of Burundi and Gambia, and not ruled out against South Africa, as a result of these countries announcing their intent to withdraw from the ICC. Argument In recent weeks, the governments of the Republic of Burundi, the... (more)
Mehrunisa Ranjh: Diplomacy as a Response to ICC Withdrawals Summary The International Criminal Court (ICC) should deploy a strategy of radical diplomacy in response to the recent withdrawal from the court of South Africa, Burundi, and the Gambia, before taking any action that could potentially compromise the integrity, independence, or enforcement power of the court. Argument South Africa, Burundi, and the... (more)
taylmer: From what I have noticed, African nations are seeing crimes against humanity being committed by Western countries, with little being done to show accountability. African nations believe they are being targeted, and by many accounts that's exactly what has happened. African nations appear easy to target. Western nations appear much harder, due to their legal systems still being intact. One example is that of Australia. Asylum seekers and refugees are being tortured in detention centres, with... (more)
Terminusbound: I Support the Withdrawal. The logic that underpins the African states decision to withdraw from the ICC is not that the ICC is a racist institution. The Logic addresses the basic problem that the ICC is a impotent outside of the context of third world states. It is not that the ICC only wants to prosecute Africans, it is that the ICC can only prosecute Africans. The ICC has no power to prosecute living European war criminals or American war criminals. The ICC has no power to prosecute living... (more)