On South Africa’s big day at The Hague: Time for the ICC to try a little tenderness

Like Presidents Sudan and South Africa meeting
Thursday, March 16, 2017 - 14:27

By Ishmael Bundi

And then there was one.

Yes, Burundi is now the only African country still making a beeline for the ICC exit door. In reverse order of how they notified the UN Secretary-General of their desire to leave The Hague Court, Gambia and South Africa have returned to the fold.

Gambia’s U-turn was occasioned by the election of Adama Barrow as President while South Africa’s was the product of judicial intervention. South Africa’s North Gauteng High Court ordered the Jacob Zuma-led government to reverse course on ICC withdrawal since it had been done without consulting parliament rendering it, in the court’s words, “unconstitutional and invalid”.

South Africa’s Justice Minister Tshililo Michael Masutha complied with the order post-haste.

Celebrations though were muted. In response to original challenge in the High Court, Masutha in November 2016 had presented a bill to parliament to repeal South Africa’s membership of the ICC. The ANC’s majority in parliament would mean that the Rome Statute of the International Criminal Court Act Repeal Bill could be passed without much fuss and the withdrawal process would be back on track. That’s until Masutha pulled a fast one on everyone. He took the repeal bill off the table.

So what gives?

Why has the South African government turned tail on ICC withdrawal at the first sign of resistance? To answer this question, it’s necessary to explore the reasons that have been given – by Zuma’s government and by discerning pundits – for South Africa’s desire to leave the ICC. Let’s take them in order:

Reason 1: South Africa truly believes the ICC is standing in the way of it being an effective peace maker in Africa

This one is straight from the horse’s mouth.

“The Republic of South Africa has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court," read the document South Africa submitted to the then UN Sec-Gen Ban Ki-moon notifying him of the country’s desire to withdraw from the ICC.

We also have Masutha’s own words to go by. Masutha told journalists in October that SA felt “hindered” by The Hague court in its role as peace maker in Africa.

“South Africa is hindered by the Rome Statute of the ICC which compels the country to arrest officials who also have diplomatic immunity,” he said.

Reason 2: South Africa is re-establishing its credentials in the AU

This explanation is rooted South Africa’s recurring spasms of xenophobic attacks which predominantly target economic migrants from other African countries. It goes something like this: South Africa’s run-in with the ICC over al-Bashir wasn’t by design (read “peace effort”) but the product of the country trying to save face within the Africa Union (AU) after the 2015 xenophobic attacks.

“A senior AU official told ISS Today then, that if South Africa refused entry to al-Bashir, that – coming on top of the xenophobia – would wreck its relations with Africa,” reports the Institute for Security Studies (ISS).

Still simmering from the Omar al-Bashir debacle, the ANC then eviscerated the ICC in its June 2015 policy document. The final ANC draft on international relations contained words that, in hindsight, seemed to foreshadow the notice the SA government would later send to the UN Sec-Gen.

“There is no national interest value for South Africa to continue being a member if the ICC. The manner that we were treated around the al-Bashir incident is consistent with the cheeky arrogance that Africa has experienced in its interaction with the ICC,” read the document.

Reason 3: South Africa doesn’t know what it wants

Then there are those who feel that the South Africa’s assault on the ICC is symptomatic of a country suffering from a foreign policy “identity crisis”. They argue that with Nelson Mandela gone, South Africa is missing a firm hand on the foreign policy tiller.

According to this theory, best articulated by Sanusha Naidu Senior, a researcher at the University of South Africa, Mandela gifted South Africa with an “ethical foreign policy” but his successors have made a series of serious blunders concluding with the push to withdraw from the ICC.

“We believe that part of the problem is that South Africa has an unsettled identify crisis. This was raised during a parliamentary briefing by the South African Council on International Relations. It was noted then that: We cannot know what we want, if we do not know who we are.”

Cold comfort

Adding these explanations up – and they aren’t mutually exclusive - they paint the picture of a government that is all over the place concerning withdrawal. Consider these quotes from the SA government delegation to last year’s Assembly of States Parties (ASP) meeting, which took place just weeks after SA started the one year-long ICC withdrawal tick-tock.

Analysts like the ISS’s Allan Ngari say South Africa is “unlikely” to want to restart the withdrawal process again in the near future due to the fact that the ANC already has a lot on its plate domestically.

“Unlikely” is cold comfort for the ICC. As it is, both South Africa’s Deputy President Cyril Ramaphosa and a spokesman for the Justice Minister have hinted that Zuma’s cabinet is still pondering how to deal with the matter of withdrawal after the High Court’s intervention threw a spanner in the works.

Conclusion: Try a little tenderness

The good news is an opportunity exists for the ICC to smooth things out with South Africa. SA’s Justice Minister is due to appear at The Hague on April 7th to explain the country’s failure to arrest Al-Bashir.  The ICC should seize the day. Zuma has made a humiliating climb-down by abandoning withdrawal (even if just for the moment), the ICC should reward him by making some concessions of its own.

As legal researcher Mark Kersten advised on this site after last year’s Assembly of States Parties (ASP) meeting, the ICC needs to give South Africa (and other African member states) some wiggle room on the issue of head of state immunity. This matter needs to be settled once and for all, perhaps, as Kersten suggests, by inviting the International Court of Justice (ICJ) to issue an advisory opinion.

At any rate, putting the subject of head of state immunity up for discussion will give South Africa something it can sell as a “win” back home. Getting such a concession from the ICC will also earn South Africa plenty of points within the African Union. It will also demonstrate to other AU members that it is possible to reform the ICC from the inside.

Just as important, South Africa watchers like the Daily Maverick’s Simon Allison, agree that April 7th won’t be the time for the ICC to give South Africa a stern talking-to:

"Second, be diplomatic. This is not the ICC’s strong point. Its communications are notoriously tone-deaf, while too many ICC officials focus strictly on the legal elements of their work while ignoring the political ramifications. Thus, while South Africa probably deserves a stern warning for failing to arrest Bashir, now is not the time to make the South African government feel persecuted.”

Any other words, if there was ever a time for the ICC to try a little tenderness, it’s on April 7th. The old dictum, "speak softly, and carry a big stick” certainly applies here. It’s time for the ICC to give the “big stick” a rest and try out the “talk softly” part.

Image: The Presidency of the Republic of South Africa/Facebook


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