Into splendid isolation: The ANC and South Africa's policy on the ICC
19 July 2017
The recently-ended governing party’s Policy Conference, meant to yield resolutions to determine guidelines to assist the new post-December party President establish the nation’s foreign policy, was revelatory. Not least because of the party’s silence on the damning allegations of state capture levelled at senior ranking party officials, or indeed that several key state organs appear to also have been politically compromised. Rather, the party’s stance on the International Criminal Court (ICC) threatens to isolate South Africa as a serious contender in the fight against impunity for gross human rights violations and crimes against humanity.
The International Relations discussion document of the governing party takes aim at the Rome Statute establishing the ICC on the basis that “It is regrettable that the power relations in the Rome Statute remained skewed in favour of the powerful western powers who were given untrammeled power through an unrepresentative structure like the UNSC.” The need for a reformed United Nations Security Council (UNSC), reflecting today’s geo-political realities, is a given. However, it is also true that outside of the ICC, there is no other permanent body to effectively address impunity for gross human rights violations.
The discussion document goes on to state that “The [Rome] Statute and the unbalanced manner in which the western powers prefer it to be implemented does not give due regard to fundamental issues of the need to strike a balance between peace and justice”. The document purports to speak for the 34 African States who are signatories to the Rome Statute and laments the Rome Statute’s implementation, which seemingly ignores efforts on the continent to address peace and conflict. Yet without a hint of irony, the document goes on to urge the African Union (AU) and its member states to “…urgently finalise efforts to enable the African Court on People and Human Rights to discharge its expanded mandate.” This is a tacit admission of the fact that the continent cannot effectively bring to book perpetrators of gross human rights violations.
The Malabo Protocol (the Protocol) was adopted in June 2014 by members of the AU, including South Africa, and aims to extend the jurisdiction of the existing African Court on Justice and Human Rights (ACJHR) to include crimes under international law which are similar to those of the ICC. However, the Protocol spectacularly includes immunity for Heads of State. Given the well-reported and documented atrocities often committed by Heads of State on the continent, immunity would render the ACJHR useless in the fight against impunity for gross human rights violations. In any event, members of the AU have had a lethargic response to the Protocol, with to date, only nine signatories out of the required 15, to ensure that the provisions of the Protocol see the light of day. This suggests that the concerns articulated by the governing party’s discussion document - that the skewed power relations in the Rome Statutefavour Western States over poorer States of the South - are but a smokescreen to shield errant States from international scrutiny and accountability.