The contents of State’s Attorney Division Case File 3604/2015 presented to the North Gauteng High Court in Pretoria might not seem the most scintillating of places to start a column.
But on the outside of the file itself, someone from the Attorney Division wrote ‘President Omar Al Bashir – Warrants still valid’. While I am not privy to the information in the file, I can hazard a guess as to its contents.
In June 2015, Sudanese president Omar al-Bashir came to Pretoria for an African Union summit. For his alleged involvement in stoking hatred and mass violence in Darfur, Bashir was subject to an arrest warrant from the Hague-based International Criminal Court. With over 120 signatories, the ICC is designed to prosecute those charged with war crimes, crimes against humanity, and genocide. Upon landing in South Africa, the government, as a signatory to the ICC, could have arrested Bashir. In the event, the Sudanese president was able to leave the summit without being detained. The South African authorities argued that to arrest Bashir was to violate the South African Diplomatic Immunities and Privileges Act (2001).
To arrest or not arrest became a burning question for South African politics and wider international legal opinion. For the non-arresting constituency, arresting a sitting head of state was incompatible with its obligations to the African Union to grant immunity to heads of state in toto. Issues like immunity and extra-territorial interference have always carried great legal and political importance for African governments. As European empires crumbled, the first generation of post-colonial leaders spoke passionately about the need to protect their national sovereignty and territorial integrity.
While the ICC might enjoy a mandate that many would seem as entirely laudable, it is not universally admired or supported. For some critics, the ICC is geographically selective in its legal targeting. There have been complaints that much of the court’s work is overly-focused on African cases and that for all the talk about global human rights projection, it is striking that large nations such as the US, China and Russia have not signed and ratified the Rome Statute, the treaty that established the ICC.
“South Africa’s decision to withdrawal from the ICC tells us something important about the geographies of law. It is uneven”
In October 2016 the South African government announced that it was withdrawing from the ICC after a cabinet discussion confirmed support for the decision. What was notable, however, was that the South African Supreme Court of Appeal had ruled that the obligations of the ICC should have trumped the Diplomatic Immunities and Privileges Act. The withdrawal from the ICC was intended, therefore, to avoid further legal challenges by simply removing that international obligation from any future government. Pretoria trumps The Hague and not the other way around.
Internally, there has been a fierce debate about whether the South African parliament needs to be the one deliberating on the instrument of withdrawal. Section 231 of the country’s Constitution has been poured over and arguments had about whether the executive or legislature has the right to take such action. With its large parliamentary majority, an African National Congress-dominated government is unlikely to struggle to secure the imprimatur of parliament. What might surprise some outsiders is that the ‘rainbow nation’ South Africa of the Nelson Mandela era now seems a distant memory. Liberal commentators in South Africa and elsewhere have mourned the loss of the country’s ‘liberal credentials’ and position as a beacon of African civility. South Africa was the first African country to pass domestic legislation implementing the Rome Statute.
Notably, the decision to withdraw seems to have triggered a ‘contagion effect’. Burundi’s parliament has hinted at withdrawal and Kenya’s president Uhuru Kenyatta (himself subject to an ICC warrant at one stage) has mooted that the country will terminate its association with the court. The African Union has advocated for the creation of an African Court of Justice and Human Rights (under the so-called Malabo Protocol), and if ratified by at least 15 AU members South Africa would be expected to be a major financial contributor. The remit of the court is circumscribed in the sense that African heads of state enjoy immunity. So even if African states decide to leave in numbers, there might be a regional alternative to turn to.
South Africa’s decision to withdrawal from the ICC tells us something important about the geographies of law. It is uneven. The work of the court has been accused of revealing colonial and racist imaginaries. For the critics, the ICC targets African heads of states like Bashir and Kenyatta but has rather less to offer when it comes to addressing the alleged war crimes committed by American, Russian, Saudi Arabian and British governments in Afghanistan, Iraq, Yemen, Ukraine, Georgia and Chechnya. While African governments have often referred ‘African cases’ to the court, what is interesting is the role of the UN Security Council membership (including non-signatories like the US and Russia) which can direct the ICC to investigate. Mindful of its credibility, the ICC did open an investigation into war crime allegations involving Russia and Georgia in 2008. Ukraine, Palestine and Iraq might well follow thereafter as cases.
This was published in the December 2016 edition of Geographical magazine.