Roundup: S. Africa's decision to withdraw from ICC draws concern

As South Africa's decision to withdraw from the International Criminal Court (ICC) continued to take center stage in the country, an expert said on Friday that the move is a blow to South Africa's credibility as a proponent of a rule-based international system.

"South Africa is not a major power globally, but it is able to punch above its weight because of what many regard as its soft power. It should rather develop cross regional coalitions to support a reform drive within the ICC," Elizabeth Sidiropoulos, Chief Executive at the South African Institute of International Affairs (SAIIA) told Xinhua.

"Of course there may be a number of African countries that will laud South Africa's departure from the ICC, but the question is what will African citizens think of it, especially those who have been victims of genocide, crimes against humanity and war crimes," Sidiropoulos said.

Sidiropoulos, however, also agreed with many scholars and practitioners that the ICC should be reformed.

It is an anomaly that the United Nations Security Council (UNSC) makes referrals to the ICC but three out of the five permanent members of the UNSC are not State Parties, said Sidiropoulos.

However, she sad, this important point cannot be considered in isolation.

"The question here is more about an international framework for justice and punishment for impunity."

"The ICC's mandate is not a broad human rights one, but rather for genocide, war crimes and crimes against humanity. There is no international jurisdiction for that outside of the ICC," said Sidiropoulos.

She did not shy away from the long standing perception from some quarters that the ICC is always targeting African leaders.

Sidiropoulos said, "This point has been made often enough including by the African Union (AU), which at an extraordinary summit a couple of years ago, highlighted African states' sense of being singling out by the ICC and that members should leave the court."

"However, the noble objective of the ICC was to end the impunity of leaders, but only as a court of last resort. It was not meant to usurp sovereignty, but rather to provide recourse for victims in instances where states were unwilling or unable to act."

According to Sidiropoulos, South Africa's decision was likely influenced by international criticism that South Africa received after failing to arrest Sudanese President Omar Al-Bashir and the court judgements which found that the government was on the wrong side of the law.

Al-Bashir, on whom the ICC has issued an arrest warrant for alleged war crimes and crimes against humanity, attended the 25th AU Summit held in South Africa in 2015.

South Africa was expected to arrest him but refused to do so, insisting that all presidents attending the summit enjoyed diplomatic immunity which protects them from arrest.

The South African government argues that in addition to complying with its obligations to the ICC, the country has obligations to the AU, which rules that no organization can arrest any sitting head of state in African countries.

Sidiropoulos said South Africa's intentions might have been genuine, but the unintended consequences of its action cannot be ignored.

"It is true that SA's decision will be seen by many in the human rights community and other signatories not as an attempt to strengthen its obligations with respect to the peaceful resolution of disputes, but rather as an unwillingness to take a stand against fellow African leaders.

"The fact that the government's announcement to withdraw was not accompanied by a clear explanation of what instruments it intended to rely on in the absence of the ICC, implies that the country is less concerned about the rights of victims of abuses by states," Sidiropoulos said.

The expert also pointed out that the removal of the ICC at the international level makes the gap at the regional level even more apparent.

According to her, the move has left South Africa with very little options to use in holding other state leaders accountable, especially as far as genocide and crimes against humanity are concerned.

"The African Court on Justice and Human Rights is not yet operational. While the Court's jurisdiction is broader than that of its predecessors, the Malabo Protocol excludes sitting heads of state or government and senior officials from its jurisdiction.

"So, even when it becomes operational it will not step into the ICC lacuna," said Sidiropoulos.

A similar approach was taken on the Southern African Development Community (SADC) Tribunal at the SADC Heads of State meeting in 2013 in Malawi, which limited the jurisdiction of the SADC Tribunal to disputes between member states. The existing Court does not have a mandate to hear cases of genocide, war crimes or crimes against humanity.

South African Minister of Justice and Correctional Services Michael Masutha, who made the announcement about the ICC withdrawal last week, has brushed aside the criticism, saying his country has made a right decision.

South Africa does not want to become an international police officer who will enforce justice at all cost in the entire world, the minister said.

Masutha said there has never been a country that has arrested a sitting head of state and South Africa refuses to be a guinea pig.

He asked: "Do we want to become an international police officer who will enforce justice at all cost in the entire world? Do we have that capacity? Can we realistically arrest a sitting head of state in South Africa at a risk of perpetuating conflict in that country or provoking a war between ourselves and another country?" Endit