South Africa’s ICC Troubles Only Growing – Will The South African Government Finally Be Held Accountable?

4 April 2017

Introduction

South Africa has not only been ordered by a full bench of the North Gauteng High Court to revoke the notice of withdrawal – which it has done – but the International Criminal Court (‘ICC’) will convene a public hearing in terms of Article 87(7) of the Rome Statute, on the 7th April 2017 at the Hague.

The ICC will determine whether South Africa has failed to comply with its obligations under the Rome Statute, when it failed or refused to arrest, detain and surrender Sudanese President Al Bashir despite the existence of two arrest warrants issued by the ICC and the repeated requests for cooperation by the ICC. These proceedings will further determine whether South Africa should be referred to the Assembly of States Parties or to the United Nations Security Council for non-compliance. Although the matter of withdrawal and the Article 87(7) proceedings are entirely distinct and independent from one another, it does indicate that the South African Government is facing challenges at every turn.

Consequences of a Finding of Non-Compliance

If a formal finding of non-compliance is made against South Africa, the ICC may refer South Africa to the Assembly of States Parties (‘ASP’) and/or the Security Council.[i] But what would the consequences of a referral to either or both institutions be for South Africa?

The Assembly of States Parties

The ASP has developed its own procedures[ii] and responses which are ‘non-judicial in nature’ and involve using ‘political and diplomatic efforts to promote cooperation’.[iii] Essentially these all include discussions, dialogues, meetings, and reports to ensure cooperation. Although provision has been made for procedures for non-compliance, what does that mean? Well so far the ASP has opened dialogue with some non-cooperative States, with varying degrees of success.[iv] For example, such dialogue was successful in Malawi who refused to host Al Bashir whereas in Chad such dialogue was unsuccessful as it refused to acknowledge its obligations.[v] Unless the ASP is willing to go further and actually implement concrete solutions, none of which are specifically provided for in the procedures, I believe no amount of ‘talking’ to the South African Government will prove to be effective.

The Security Council

The Security Council does not provide for exact measures that it may take upon such a referral. However, it is probable that the Security Council will be able to use the powers entrusted to it under Article 41 and 42 of the United Nations Charter.[vi] The Security Council is given the power to impose sanctions on non-cooperative States.[vii] What is more is that the Security Council may require all States of the United Nations to respect and impose these sanctions, rather than only signatories of the Rome Statute.

However, the willingness of the Security Council to take such action is in question. In the Al Bashir matter alone the ICC has already made thirteen findings of non-compliance and referred them all to the Security Council.[viii] Despite these referrals and despite the power of the Security Council no action has been taken against any of these non-compliant States. In December 2016, the Prosecutor of the ICC expressed her frustration at the inaction of the Security Council.[ix]

Conclusion

So far it seems in both the ASP as well as the Security Council, there has been no real punishment for non-compliance. Although the lack of enforcement or effectiveness of such referrals is concerning and disheartening, it does not necessarily mean the order will have no effect. On a domestic level, a finding of non-compliance will hold the Government accountable to the South African public, and it will be in the hands of the public, particularly its NGOs, like the HSF, to ensure the Government acknowledges and rights its wrongs. On an international level, South Africa does not only have international relations with the rest of Africa, but rather with the rest of the international community. A finding of non-compliance may have a negative impact on these international relations as it indicates that the Government acted with disregard to the important and universal issue of holding those persons who are responsible for committing reprehensible international crimes to account. These international crimes, such as crimes against humanity, war crimes and genocide are crimes against every person and every nation and are not just a crime against the individual victims who have suffered. By refusing to fulfil these obligations and allowing impunity the Government has acted against the interests of the international community as a whole. Finally, on a practical level a finding of non-compliance will remove any uncertainty with regards to South Africa’s obligations to arrest and surrender any future visiting heads of state or senior officials who have a warrant of arrest issued for them by the ICC.

Chelsea Ramsden, Legal Researcher, HSF, 4 April 2017

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