ICC: South Africans must insist on membership
Now is the time for South Africans to stand together and make a clear, collective call for continued membership of the International Criminal Court. Membership signals a country’s commitment to human rights and protects citizens from leaders who become enemies of their people. South Africa’s membership currently hangs in the balance.
We must seize the opportunity that was handed to us this Wednesday by the North Gauteng High Court, confirming that the government’s October 2016 notice of withdrawal to the ICC was unconstitutional, irrational and procedurally flawed. The DA approached the court on the grounds that the decision to withdraw was taken unilaterally without public consultation or Parliamentary due process, and also on the grounds that it is simply not in South Africa’s best interest.
The decision will now have to follow the proper channels of consultation, which buys us time but does not guarantee continued membership. The ANC could use its majority in Parliament, while it still has one, to ram this through. But it will be no match for a citizenry that stands together to protect Nelson Mandela’s vision of a foreign policy based on human rights.
The ANC government’s professed reason for withdrawing South Africa’s ICC membership is that such membership hinders its ability to play a role in bringing heads of state together for a peaceful resolution of conflicts, because it compels South Africa to arrest heads of state wanted by the ICC for serious crimes against humanity. This argument is deeply flawed. It shows a disregard for the rule of law, and it ignores the dire weakness of Africa’s own institutions for accountability. SADC, for example, has been notoriously feeble at combating tyranny and human rights abuses.
The ANC government’s decision to withdraw SA’s membership must be seen in its wider context. It was delivered by the same government responsible for the deaths of 34 Marikana mineworkers and now well over 94 Esidimeni mentally ill patients in Gauteng; the same government that deployed 441 armed military personnel and miles of razor wire to protect the President during his state of the nation address; the same government that announced in that address a range of policies designed to scale up massive, intensified corruption; and the same government that denies 80% of South Africa’s children the basic education they need to get ahead in life.
Perhaps most significantly in this context, the decision to withdraw was taken by the same ANC government that defied the ICC and flouted a high court order in June 2015, in order to protect Sudanese President Omar Al Bashir from being arrested while he was in South Africa. Al Bashir, who has led Sudan since 1989 when he overthrew a democratically elected government in a military coup, is wanted by the ICC for overseeing a campaign of genocide, rape, pillage and other crimes against humanity perpetrated against citizens of Darfur, a province of Sudan.
It should concern all of us that our increasingly hostile ANC government intends to opt out of this powerful mechanism to hold leaders to account. And it is deeply ironic that the ANC government would side with repressive leaders against the millions at their mercy, given our own history of human rights abuses during apartheid.
In the same month that South Africa gave notice to withdraw, Gambia and Burundi did so too. This roused fears of a mass departure by African states, but this has not been the case. Instead, it prompted many of the 34 African member states to reaffirm their strong commitment to the court. This is why the court judgement handed down on Wednesday is a victory not only for the DA and South Africans, but Africa as a whole.
This is not to say that the ICC doesn’t need reforming. By its own admission it does, hence its new policy paper aimed at making case selection and allocation more fair and transparent. But the need for reform is not a legitimate reason for exit.
Gambia rejoined the ICC last week signaling a renewed commitment to human rights under new President Adama Barrow, who was inaugurated last week, ending two decades of repressive rule by Yahya Jammeh. This leaves South Africa in the company of Burundi, which has accused the ICC of being an instrument of powerful countries to punish leaders who don’t comply with the West.
The ICC, which has 124 member states, is meant to act as a court of last resort, stepping in only when a nation’s courts cannot or will not prosecute serious international crimes. According to Human Rights Watch, hundreds of people have been viciously tortured, killed, raped, or have disappeared in Burundi since 2015. And hundreds more have been arbitrarily arrested and detained on trumped-up charges. But the Burundian justice system is deeply corrupt and will not bring justice.
Our justice system is strong and independent but we must not take it for granted. And we must not forsake those who live in countries with weak or corrupt justice systems. The DA’s foreign policy vision for South Africa is one founded on a commitment to human rights and the rule of law and a willingness to stand up to tyrants. I am sure that the vast majority of South Africans share this vision and I am confident we will be successful in keeping South Africa in the ICC.
This article by Mmusi Maimane first appeared in Bokamoso, the online newsletter of the leader of the Democratic Alliance.