Five Thoughts on South Africa, Burundi, and ICC Withdrawals
By Mark Kersten
Contrary to the suggestion of some, the dust on South Africa’s and Burundi’s withdrawal from the International Criminal Court (ICC) has not settled. It won't for some time. These two withdrawals have sparked an intense debate on the future of the ICC. Many observers have already provided cogent commentary since South Africa deposited its notice of withdrawal to the United Nations Secretary General. In this post, I want to offer and add a few thoughts on what South Africa’s and Burundi’s decisions mean.
1) On Africa and ICC, I got it wrong
I would be remiss if I did not admit that my previous post, on Burundi’s potential withdrawal, was inaccurate. Indeed, I considered calling this post “My Awkward — And Mostly Pointless — Post on ICC Withdrawals”. In that piece, I argued that the decision of President Pierre Nkurunziza made little sense given that the Africa-ICC relationship was getting better, not worse. I stand by the empirical observations in that post — namely that Gabon’s self-referral and the dampened pressure for an Africa-wide withdrawal at the African Union (AU) matter. I also continue to believe that, for those elements supporting a mass withdrawal of African member-states of the ICC, Burundi was a poor choice (which, as argued below, helps to explain South Africa’s own decision to withdraw). But my diagnosis was wrong and it led to a faulty prescription.
To be perfectly clear, South Africa’s withdrawal from the ICC hurts the Court. There may be a few silver-linings and certainly many lessons, but there is no sugar coating these developments.
2) What’s with the ICC withdrawals — why now?
Why did South Africa’s executive decide to move now? The government has given its own reasons, focusing on its intent to avoid obligations to arrest ICC-indicted heads of state involved in peace processes. It also wants to avoid domestic civil and criminal sanction over their hosting of Sudanese President Omar al-Bashir in Pretoria last year — although withdrawing certainly can’t achieve that aim. South Africa may also have timed its decision as a means to sucker-punch the ICC’s Assembly of State Parties conference which begins in two weeks.
But it is also clear that South Africa wanted to “beat Bujumbura to the punch”. South Africa did not decide to withdraw last week. But, because of Burundi, they sped up the process of doing so. For champions of international criminal justice, Burundi would have made an ideal leader for any Africa-wide withdrawal process; few, if any governments, would be keen to follow any initiative led by Nkurunziza. There are ongoing and serious tensions between African states and Burundi. Nkurunziza’s friends on the continent (especially those in high places) are few and far between. When Desmond Tutu exclaimed that “African leaders behind the move to leave the ICC are effectively seeking licence to kill, maim and oppress their people without consequences”, he was surely speaking of the likes of Nkurunziza and his hired guns.
South Africa’s decision to withdraw was not made in solidarity with Burundi nor was it to protect or promote Nkurunziza. Not a single South African government officials has mentioned Burundi’s potential withdrawal in the same breath as South Africa’s. Instead, it appears that Burundi's decision sparked a ‘withdrawal race’. The number of competitors remains unclear, but South Africa jumped on the opportunity. On Wednesday the 19th of October, just one day after Nkurunziza signed a presidential decree to withdraw from the Court, South Africa’s cabinet met to draft an executive order withdrawing the country from the ICC. If anyone was going to lead an Africa-wide withdrawal, it wasn’t going to be Burundi. South Africa thus judged that it should be in the vanguard. So President Jacob Zuma’s cabinet put their pedal to the metal and accelerated a process of withdrawing that was, it should be noted, already in the works. That it was South Africa — and not Burundi — who was the first to withdraw from the ICC makes the possibility of others following suit more likely.
3) Expect some further withdrawals but no mass exodus
There have been two broad reactions to South Africa’s decision to withdraw from the ICC. One set of responses has bemoaned — or, in some cases, celebrated — the loss of South Africa as an ICC member-state. The second has warned of — or, again, celebrated — a potential “domino effect” or “mass exodus” by African states from the Court. My prediction is that a handful of states (somewhere between 5-10) will seriously explore withdrawing, some will follow suit, there will be increased diplomatic pressure at the AU for more to do so, but most African ICC member-states will remain members.
It is worth clarifying that Burundi has not deposited any notice of withdrawal from the ICC and thus has not begun the process ending its membership in the Court. Still, there are a few other key candidates for withdrawal. Namibia, Kenya, and Uganda have all previously expressed an interest in withdrawing from the ICC: Namibia’s cabinet has voted to withdraw; Kenya’s parliament has twice voted to withdraw from the Court; and Ugandan ministers have regularly suggested that the country is preparing its own unceremonious exit. Yet none of these states have expressed support for South Africa’s decision. Nor have they given any clear signal that they would, indeed, withdraw in the coming days. Namibia has remained silent on the matter. A Ugandan minister has stated the country was “undecided” about any withdrawal. And a Kenyan official said that any decision to withdraw was up to President Uhuru Kenyatta’s cabinet. All three may end up peacing out. But it isn’t as clear as the dooms-day predictions may suggest.
Over the coming days, we should expect a number of African states to speak up regarding their continued commitment to the ICC. Senegalese Justice Minister Sidiki Kaba, who acts as the President of the ICC’s Assembly of States Parties, has already done so. More will follow. Moreover, states like Gabon, who view ICC self-referrals as being in their interest, will continue to invite ICC investigations. The Court's proclivity to target the adversaries of self-referring states — in other words, the ICC’s in-situation selectivity — remains very useful to governments. That won’t evaporate with South Africa’s withdrawal.
One event which will help clarify the current standing of the ICC-Africa relationship is the African Union’s next summit, this coming January. This will mark the first time African leaders will be together since these withdrawals. We should expect the issue of South Africa’s withdrawal to garner significant attention from African diplomats. There will almost surely be some push to have states endorse Zuma’s decision. But it isn’t clear that South Africa will successfully manage to do so. After a number of African states stood up in defence of the ICC, the issue of a mass-withdrawal did not reach the agenda of AU heads of states in last June's Summit. Moreover, South Africa’s decision — which was unlikely to have been made in collaboration with other AU states — has the potential to fracture any consensus on mass withdrawal from the ICC.
4) Appropriating Mandela’s legacy
Many writing in support of the ICC have cited “Nelson Mandela’s Legacy”, suggesting that South Africa’s decision to withdraw betrays it. This rhetoric was also flung-about when Zuma hosted Sudanese President Omar al-Bashir. Yet, while it is true that Mandela signed the Rome Statute and pushed its ratification, appropriating his legacy seems neither accurate — nor especially useful.
I have previously written on Mandela’s mixed record on international justice. While he is a human rights icon, he also counted the likes of Muammar Gaddafi — himself an ICC indictee — among his closest friends. Mandela also despised what he saw as Western hypocrisy and attempts by Western governments to dictate to African states — including on the issue of hosting and feting the likes of Gaddafi.
It would be more useful for proponents of the ICC to focus on the African National Congress (ANC) and its ongoing internal fissures. Here, it is notable that, in explaining why South Africa had joined the ICC in the first place, current Justice Minister Michael Masutha, effectively threw former President Thabo Mbeki under the bus, implying that he was ignorant of the ‘risks’ in joining the Court.
Appropriating Mandela is both inaccurate. It may be seen as useful rhetoric for advocates but it’s not clear that it can help. For champions of the ICC, it may be also be counter-productive. Would anyone who needs convincing that South Africa should remain a member of the ICC change their mind by being confronted with the rhetoric of a partial account of Mandela’s life and legacy?
5) The domestic situation
The Democratic Alliance, the main opposition party in South Africa, has submitted a claim to the South African Constitutional Court arguing that the country’s decision to withdraw was unconstitutional. That view is shared by, amongst others, Richard Goldstone, the esteemed South African judge and former Chief Prosecutor of the international criminal tribunals for Rwanda and the Former Yugoslavia.
The crux of their argument stems from the decision by the South African executive to send a notice of withdrawal to the UN Secretary General without first consulting the country’s parliament. As Masutha explained, the government believes it can officially withdraw from the Court first and only then ask the parliament to repeal the Implementation of the Rome Statute of the International Criminal Court Act, which domesticates the ICC’s Rome Statute into South African law. Others believe it must be the other way around.
But expectations need to be tempered. There are two arguments that are being conflated. The first is legal. But it remains unclear whether South Africa’s executive is, indeed, prohibited under South African law from withdrawing from the ICC without consulting parliament. After all, signing the Rome Statute is an executive action, not one which requires parliamentary consent. The second argument pertains to democratic conventions. Here it seems evident that the government violated the spirit of the country’s democratic traditions by taking such brazen, dramatic action without any signal to parliament or the South African people. This decision is particularly curious given that Zuma’s ANC dominates parliament; any bill to withdraw would have easily passed. This only gives further credence to the argument that South Africa ‘rushed’ their decision in response to Burundi’s.
It will be fascinating to see if, whether, and how domestic actors are able to prevent or delay South Africa’s withdrawal from the ICC. The government continues to face legal action over its hosting of Bashir last year. Some, including David Rieff, have asked whether domestic human rights groups and law-firms pushed the government too hard on Bashir and, as a consequence, forced the government to withdraw from the ICC. It is clear that the legal actions taken by these actors contributed to the ANC’s decision to support withdrawal from the Court. Some have admitted as much. But it is hard to blame these groups for seeking to protect South Africa’s international reputation as well as the country’s own rule of law (the ICC arrest warrant for Bashir has been domesticated in South Africa).
While human rights groups should be held accountable for the consequences of their decisions, when they took legal action against the government, no one was predicting that it could feasibly push the country to withdraw from the Court. The risk to the country’s international standing and respect for its own laws was much greater than the risk of South Africa withdrawing from the ICC. It arguably continues to be so today.
Finally, it is worth paying close attention to wider domestic developments in South Africa. Domestic legal action is one thing. But the current political context in South may also help counter-act any withdrawal. The ANC’s chief whip calling for Zuma’s resignation, ongoing corruption scandals, and wide-spread uproar over university policies and tuition fees, all signal a high level of popular disaffection. While it isn’t clear that the issue of withdrawal is nearly as compelling, domestic groups aiming to avoid South Africa’s withdrawal should tie the issue of South Africa’s ICC exit to this ongoing season of domestic discontent.
Lead image: President Omar al-Bashir and President Jacob Zuma (Photo: GovernmentZA/Flickr)
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.