South African High Court Blocks Pretoria’s Departure from the ICC

Nelson Mandela’s South Africa was one of the founders of the International Criminal Court (ICC). As an early signer of the Treaty of Rome the widespread view within the ruling African National Congress (ANC) was that the ICC was a means of holding accountable dictators and other heads of state for criminal behavior. The ANC government even incorporated the Treaty of Rome into South African law. Hence, violation of the Treaty of Rome is also a violation of South African law.

Since its establishment, the ICC shoe has pinched the toes of a number of dubious heads of state, notably Kenya’s Uhuru Kenyatta. At the request of the then-Kenyan government, the ICC investigated crimes committed at the time of the 2007 Kenyan elections and subsequently indicted Uhuru Kenyatta, by then president of Kenya, and his vice president William Ruto. However, Kenyatta’s Kenyan government refused to cooperate with the ICC and prosecutors accused it of intimidating witnesses, who withdrew their testimony. The cases collapsed, and Kenyatta launched a campaign for African states to withdraw from the ICC. He and others accuse the ICC of bias against African states, and many claim that the ICC’s jurisdiction should not extend to heads of state or governments. There is also resentment that certain Western countries, notably the United States, support the ICC but have declined to sign the Treaty of Rome and therefore are not under its jurisdiction. There is anger in some quarters that the ICC could not indict members of the George W. Bush administration for perceived crimes during the war in Iraq.

South Africa’s President Jacob Zuma, too, has fallen afoul of the ICC. Under the Treaty of Rome, if a person indicted by the ICC falls into the hands of a signatory state that state is obliged to hand him over to the court. Sudan’s chief of state Omar al-Bashir has been so indicted by the ICC for crimes committed in Darfur. Al-Bashir visited Pretoria in 2015 for an African Union heads of state summit. Zuma not only failed to detain Bashir, he facilitated the latter’s hasty departure from the country when South African courts were moving toward ordering Bashir’s arrest, following suits filed by South African civil organizations.

Subsequently, the Zuma government has joined the quit ICC bandwagon by notifying the United Nations of South Africa’s intention to withdraw. At its January summit, the African Union heads of state voted in favor of a non-binding resolution calling for its members to withdraw from the ICC. However, on February 22, the South African High Court ruled in favor of the opposition Democratic Alliance suit that the government’s announced departure was “unconstitutional and invalid.” Because the Treaty of Rome is incorporated into South African law, only parliament could change it so that South Africa could leave ICC jurisdiction. In response to the ruling, the Zuma administration has reiterated its intention to leave the ICC and is considering its options.

Zuma’s ANC has a majority of over sixty percent in parliament. The BBC concludes that at the end of the day, parliament is likely to approve withdrawal; but such a projection is premature-still. The ANC is badly fractured with pro and anti-Zuma factions. The party is scheduled to elect a new leader in December 2017. Many South Africans, including some in the ANC, see the ICC as part of the Mandela legacy of “non-racial” democracy and the rule of law. Shedding ICC jurisdiction, by contrast, is associated with Zuma, who is discredited among some for alleged corruption. Hence, it is by no means certain that parliament would do Zuma’s bidding on this issue anytime soon.