Although not entirely unexpected, South Africa’s announcement that it had taken steps to withdraw from the Rome Statute, the founding treaty of the International Criminal Court (ICC), has baffled many observers. South Africa is generally seen as a champion of human rights, given its liberal constitution, the existence of a strong civil society advocacy for the advancement of a variety of rights, and its history of struggle against apartheid—a legal and moral regime founded on the very violation of fundamental rights. South Africa took a very active role in the elaboration of the Rome Statute, which must be seen as deeply influenced by that history.
In calling for its withdrawal from the treaty, South Africa’s international relations and cooperation minister, Maite Nkoana-Mashabane, invoked a legal conflict between, on the one hand, international customary law, which guarantees diplomatic immunity to sitting heads of state, and, on the other, the country’s legal obligations under the Rome Statute. According to Justice Minister Michael Masutha, these obligations undermine South Africa’s ability to promote “peace, stability and dialogue” on the continent. The decision in fact follows a request by South Africa for clarity on conflicting immunity obligations made at the Assembly of States Parties held in The Hague in 2015.
If the immediate cause of withdrawal has, therefore, to do with the political and legal aftermath of South Africa’s refusal to arrest Sudan’s president Omar al-Bashir, accused of war crimes by the ICC, during his attendance at the African Union (AU) meeting in Johannesburg in June 2015, the problem is arguably more complex. The legal argument barely conceals a political protest against the ICC’s discriminate focus on African perpetrators of international crimes.
The ICC operates within a global governance structure characterized by a problematic multilateral-ism, the prevalence of Northern hegemony, and an implicit hierarchical moral and racial order that makes the prosecution of African leaders acceptable but the indictment of American or British leaders inconceivable. In 2011, for instance, Amnesty International called for UK prime minister Tony Blair and U.S. president George W. Bush to be tried by the ICC as war criminals for atrocities committed in Iraq and Afghanistan. Nobody believed for a second that these leaders would ever be brought to account.
Insofar as Africa is concerned, the AU will have to implement the 2014 Malabo Protocol to enable the African Court of Justice and Human Rights to prosecute peremptory crimes, if that court is to be taken seriously. The recent prosecution of former Chadian dictator Hissène Habré at the Extraordinary African Chamber in Dakar for crimes of war is evidence that where there is political will and adequate resources, the cause of justice can be advanced on the continent. The current conjecture with the ICC is, therefore, far from being straightforward; it is not to oppose immunity to impunity but rather to denounce moral hypocrisy, double-standardized and racialized determinations.
The initial enthusiastic support by Africa and other developing states for the ICC was motivated by a desire to have a collective instrument, unhindered by a veto system and capable of reining in even the most powerful states, to subject therefore everybody to the same universal rules, to deliver global justice, and to advance universality. Instead, the court has turned to the continent as a place of prosecutorial experimentation, and this is partly what is being objected to.
The prospects are enormous for the ICC’s capacity to help bring justice to millions of victims in Afghanistan, Libya, Palestine, and other parts of the world, but until the issues of fairness, competency, and procedural deficit are addressed, this promise will remain unfulfilled. The fundamental question here is not whether more African states are likely to pull out. They are. In fact, an exodus is very likely. The bigger issue, however, is that the implementation of the Rome Statute in its current form suffers from many “technical” deficiencies, including shortcomings in the operations of the Office of the Prosecutor (OTP). Until big powers such as China, Russia, and the United States come on board to support the ICC in mitigating these shortcomings, the court will continue to lose moral legitimacy and, therefore, relevance.
Given this context, African states do have legitimate grounds for denouncing the ICC’s disproportionate focus on African perpetrators of crimes, who are seen as easy targets. Of the ten countries currently being investigated by the ICC, nine are African. That some of these cases were referred to the court by African states themselves does not justify current prosecutorial configurations. The tendency to go after African leaders perpetuates an image of them as corrupt villains who prey on their populations, even as the most egregious crimes are being committed in Chechnya, Colombia, Iraq, Afghanistan, Syria, and Yemen, to name a few, most of which involve dominant powers such as France, Russia, and the United States.
As a treaty court, the ICC prosecutes perpetrators of war crime, genocide, and gross violations of human rights where states have voluntarily referred cases to it. While the court cannot adjudicate crimes perpetrated by non-member states, the fact that cases can also be referred by the UN Security Council (UNSC) opens up space for third-party interference. This was, in fact, the situation that led to the referral of Omar al-Bashir to the ICC by the UNSC for charges of genocide and crimes against humanity in Darfur.
A couple of things are at issue here. First, South Africa’s withdrawal from the Rome Statute has to be seen as a significant protest gesture against ICC bias against African leaders. While UNSC members are happy to make referrals to the ICC, they are reluctant to the idea that the ICC could prosecute their public and military personnel. Second, while any move that undermines the prosecution of perpetrators of peremptory crimes has to be seen as a moral and legal regression, the reluctance of the international community to recognize and address the court’s “African” bias and related procedural deficiencies are bound to lead to more withdrawals.
More crucially, South Africa’s withdrawal from the ICC constitutes a commentary on the nature of the legal global order. The absence of a moral equivalence in the implementation of legal principles across all countries regardless of size and political and economic endowment has an immediate effect on the internalization of the global legal regime as inherently biased. The global order is constrained by an absence of parallelism as a principle of international relations. Parallelism requires that the same jurisprudential rules and system of values, that equivalent norms be applied fairly and evenly to all states.
Legal scholars often take for granted the normativity of “The Law” and treat “politics” as an inferior domain that merely interferes with the pursuit of “justice.” In fighting “the most serious crimes of concern to the international community,” however, as the founding charter has tasked the International Criminal Court with doing, it has to be recognized that extrajudicial demands have come to compromise the status—and now the future—of a needed judicial institution.