To stay or to go: South Africa and the ICC

South Africa has been summoned by the International Criminal Court regarding the non-arrest of Sudanese President al-Bashir in 2015

South Africa's President Zuma is welcomed by his Minister of International Relations and Cooperations, Maite Nkoana Mashabane.

South Africa's President Zuma is welcomed by his Minister of International Relations and Cooperations, Maite Nkoana Mashabane.

There has been a back and forth in South Africa regarding the country’s membership of the International Criminal Court (ICC) in The Hague. The country has long been a signatory to the ICC but recently announced that it would seek a route to leave the court. A recent South African high court ruling stated that President Jacob Zuma’s move to leave the ICC was unconstitutional.

A notice on the UN treaty website now concludes that this ruling means that the country is still a part of the court.

As a continuing member of the court, South Africa must still answer questions as to why the country did not arrest or detain Sudanese President Omar al-Bashir when he visited in 2015. Al-Bashir is accused of genocide and war crimes but has denied the accusations. Under the Rome Statute - of which South Africa is a signatory - member countries have a legal obligation to arrest anyone sought by the ICC.

Ayesha Johaar, the acting chief state law adviser for the South African Department of Justice and Constitutional Development, said Pretoria was asked to appear at the Hague-based court for failing to comply with a cooperation request from the tribunal, contrary to the provisions of the treaty establishing the court and which came into force in 2002.

“It concerns an order of non-compliance by South Africa as a member state of the ICC and Sudan’s president,” she said.

Withdrawal revoked

South Africa shocked the international community late last year when it announced that it intended to withdraw from the ICC. This would have made South Africa the first country to leave the tribunal that has more than 120 member states.

The Democratic Alliance, South Africa’s main opposition party, challenged the withdrawal in court and said that it was illegal because parliament was not consulted.

“South Africa does not want to be lumped together with pariah states who have no respect for human rights,” the Democratic Alliance said after the court decision.

It remains unclear whether South Africa’s ruling African National Congress (ANC) party will challenge the court ruling.

South Africa is one of three African countries who have stated intentions to leave the ICC. Only Burundi remains on a path to withdrawal after Gambia’s new president, Adama Barrow, reversed its previous president’s moves to leave the court.

To stay or to go?

Philipp de Wet, an associate editor at the Mail & Guardian newspaper in South Africa, told DW that the government has been quite defiant on its membership of the ICC and associated requirements. He also raised the question as to how these recent rulings could affect the African Union’s (AU) stance on the ICC. Just last month, the AU encouraged member nations to leave the ICC in favour of the African Union Court of Justice.

“South Africa’s attitude here will be seen to be signalling the attitude of the AU more broadly and could have consequences across a broad range of multilateral landscapes,” said de Wet.

He added that there is broad support within South Africa for the country to remain within the ICC.

“There is a belief that the ICC is or can be a force for good and that if it is not serving that purpose, then it should be fixed from within,” he added.

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