WHAT’S THE STORY?

SOUTH Africa has sent shockwaves around the globe by beginning the formal process of quitting the International Criminal Court (ICC).

The move immediately triggered an outcry from human rights activists who fear it signals the beginning of the end for the world’s first permanent war crimes court.

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes,” said Dewa Mavhinga of Human Rights Watch.

“It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored.”

The decision to leave the ICC follows South Africa’s refusal to arrest the “Hitler of Africa”, Sudanese President Omar al-Bashir.

He has been charged with genocide and war crimes by the ICC but was allowed to visit Johannesburg with impunity to take part in an African Union summit event. South Africa, as a member of the ICC, had a duty to arrest him so he could face trial.


The move to quit also follows South African President Jacob Zuma’s recent visit to Kenya where the government has been fiercely critical of the ICC ever since President Uhuru Kenyatta was charged with crimes against humanity.

WHY ARE THEY PULLING OUT?

AT a press conference yesterday, Justice Minister Michael Masutha said South Africa did not want to comply with ICC arrest warrants that would lead to “regime change”.

The country’s formal withdrawal document states: “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.”

President Zuma has previously accused the ICC of bias against Africa, a charge also made by the African Union and which the court denies. Burundi, Namibia and Kenya have also said they want to pull out of the ICC.

It is true that since the ICC was set up in 2002 it has appeared to focus on issues in Africa. However, of the eight cases the ICC has so far pursued on the continent, four have been self referrals where the state has asked for the court’s help. They are the Central African Republic, the Democratic Republic of Congo, Mali and Uganda. Two more – Libya and Sudan – were referred by the United Nation’s security council. The only two where the ICC’s prosecutor independently began investigations were in Côte d’Ivoire and Kenya.

The ICC is also currently investigating cases in Palestine, Afghanistan, Georgia, Colombia, Ukraine, Honduras and Iraq.

WHAT HAS THE COURT DONE?

THE first verdict of the court was in March 2012 when Thomas Lubanga, a militia leader in the Democratic Republic of Congo was sentenced to 14 years in jail for war crimes related to forcing children to fight in the civil war.

Kenyatta was indicted in 2011 in relation to post election violence which claimed the lives of 1200 people in 2007-08. The charges were dropped three years later.

Still wanted is the leader of the Lord’s Resistance Army, Joseph Kony, who is charged with war crimes and crimes against humanity including the kidnapping of thousands of children. The LRA is active in South Sudan, north-eastern DR Congo and northern Uganda.

There is also an outstanding arrest warrant against Bashir who faces two counts of war crimes, three counts of genocide and five counts of crimes against humanity. The ICC arrest warrant is the first against an acting head of state.

“The ICC is working with Africa, and working for African victims, so I don’t think the African Union should be against that,” said Fatou Bensouda, chief prosecutor of the ICC, who is Gambian.

DOES THE COURT HAVE FAILINGS?

ONE charge that could be laid against the court is that it is not as effective as it should be – mainly because some of its 124 member states refuse to comply with arrest warrants or fail to cooperate properly with investigations. Lacking a detective agency or force that could be used to arrest suspects, it is forced to rely on the police services of its member states to make arrests.

The ICC is also hampered by the failure of the US to join even though Bill Clinton signed up when he was president but the succeeding Bush administration was vehemently opposed. Other countries to sign but not ratify the treaty are Russia, Israel, Iran and Egypt.

India, Pakistan, China, Turkey and Indonesia have refused to sign. Their absence puts a bigger financial burden on member nations. Contributions are based roughly on national wealth and the UK, France, Japan and Germany are among the biggest funders.

Unlike the international tribunals set up to deal with the atrocities in Rwanda and the former Yugoslavia, the ICC remains the only legal body in the world with permanent international jurisdiction to prosecute war crimes, crimes against humanity and genocide.

If, as predicted, a mass exodus follows South Africa’s withdrawal it will mean that many victims will have little redress if their own national judiciary will not prosecute their oppressors.