ICC: Whither Africa?

*Continent divided on withdrawal from court

By Tichaona Zindoga

JOHANNESBURG- Africa’s mass exodus from the controversial International Criminal Court is off the rails, and the recent decision by South Africa to revoke its withdrawal from ICC is the latest indication of diminishing chances of the continent dealing a fatal blow to the court.

In October last year, South Africa, Gambia and Burundi all wrote to the ICC seeking to withdraw from the Rome Statute, in what was seen as an indication that Africa was ready to dump a court that has been accused of targeting mostly African leaders since inception in 2002.

Africa as a bloc has 34 out of a total 124 members that have signed up to the Rome Statute that set up the International Criminal Court, based at The Hague, Netherlands.

Less than half a year on, things have changed as Africa stands unsure, undecided and divided over what one African leader pejoratively dubbed the International Caucasian Court.

Analysts point out that Africa may as well remain stuck with the ICC, albeit with changes likely to ring in relations between the two parties.

Late last month, a South African High Court found out that the country’s Executive had procedurally bungled in purporting to withdraw from the ICC, having not consulted Parliament.

Deputy Judge President of the Gauteng High Court Phineas Mojapela said: “There is prematurity and procedural irrationality in the notice to withdraw from the Rome Statute by [the] Executive without parliamentary approval.”

The court then ordered President Jacob Zuma‚ International Relations and Cooperation Minister Maite Nkoana-Mashabane as well as Justice and Correctional Services Minister Michael Masutha to institute revocation of the notice of withdrawal.

Last week, the government complied and wrote to the ICC stopping the withdrawal and at the time of writing, The Southern Times understands that Justice Minister Masutha had approached Parliament to withdraw a Bill legalising South Africa’s pullout from ICC.

On Tuesday last week, the Secretary general of the United Nations, Antonio Guterres, confirmed the moves by South Africa saying: “I wish to inform you that the Gauteng High Court of the Republic of South Africa has on 22 February 2017 issued a judgement in the matter between the Democratic Alliance and the Minister of International Relations and Cooperation and others and found that the approval of the Parliament of South Africa had to be obtained before the Instrument of Withdrawal from the Rome Statute of the International Criminal Court can be deposited with the United Nations as provided for in Article 127(1) of the Rome Statute of the International Criminal Court. Consequently, the abovementioned depositing of the Instrument of Withdrawal was found to be unconstitutional and invalid.”


For those who have followed the debate and the geopolitics around Africa and the ICC, the issue of South Africa has significant weight.

South Africa is the continent’s largest economy and also represents a strong geopolitical player.

When it gave notice to withdraw last year, a source close to the then UN chief, Ban Ki Moon, according to one newspaper report, said “We didn’t see this coming”; and that, “The UN Secretary General was totally shocked”.

Former Secretary General Kofi Annan also launched an impassioned plea for Africa not to leave the court.

South Africa argued in its instrument to withdraw that, “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.”

It also said: “The Republic of South Africa is committed to fight impunity and to bring those who commit atrocities and international crimes to justice and as a founding member of the African Union promotes international human rights and the peaceful resolution of conflicts on the African continent.

“In complex and multi-faceted peace negotiations and sensitive post-conflict situations, peace and justice must be viewed as complementary and not mutually exclusive.”

South Africa had ridden into a storm following it’s reluctance to arrest Sudanese President Omar Al Bashir when he visited the country for an African Union meeting in 2015.

Al Bashir is on a warrant of arrest from ICC for war crimes and crimes against humanity.

The latest setback suffered by the South African leadership is likely to be welcomed by supporters of ICC.

On the other hand, Gambia’s new leader Adama Barrow, who took over from Yahyah Jammeh, has reversed the decision by his predecessor to withdraw from the court.

It was former president Jammeh who famously described the ICC as the International Caucasion Court.

Whither Africa?

According to analysts Africa is unlikely to withdraw en masse from ICC and this is because of divisions on how to approach the matter.

In fact, at the highest level, at AU, there seems to be equivocation.

South Africa’s halted bid to leave ICC is even emblematic.

Allan Ngari, Senior Researcher at the Institute of Security Studies Africa, told Southern Times this week that South Africa was unlikely to mount another bid to leave the ICC as the ANC had other pressing issues, domestically, to deal with.

“That is unlikely to be taking place any time soon. The ANC is busy with other national issues,” he said.

“A lot of time and resources have been wasted on this bid and the ANC is likely to turn it’s attention on the domestic issues,” he added.

The expert explained that Africa had been divided and at the last summit in Addis Ababa at the end of January, major countries such as Nigeria, Cote d’Ivoire, Tanzania and Algeria had argued against the continental body making a determination compelling states to leave the ICC but wanted countries to use their sovereignty and decide on their own.

The summit came up with what is understood to be a non-binding resolution for members’ withdrawal.

Ngari, however, argues: “It is actually a misnomer to say that that was a withdrawal resolution. The resolution set out legal and political strategies to engage the ICC.

“The legal strategy is to seek the amendment of the Rome Statute’s Article 16 concerning the United Nations referring or deferring cases and the political strategy is that members have to engage in the open ended committee of Foreign Ministers and look at ways in which to engage the United Nations Security Council and ICC to express issues to do with Africa.” In light of these developments, Ngari points out that Africa, in particular the Commission, and ICC may soon engage and negotiate.

He believes that there should be a liaison office in Addis Ababa, at the AU’s headquarters, where common points and positions can be discussed by both parties.

March 2017
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