First published by ISS Today

The Cyril Ramaphosa administration seems to be keeping South Africa guessing – perhaps deliberately – about whether or not it intends to withdraw the country from the International Criminal Court.

In December 2017, just before the African National Congress’s critical elective conference, the previous administration of Jacob Zuma tabled the International Crimes Bill. Its purpose was to withdraw South Africa from the ICC, repealing implementation of the Rome Statute of the International Criminal Court Act which had incorporated the ICC’s Rome Statute into South African law.

The preamble to the Bill says the government wishes to pull out of the ICC because South Africa’s international relations are being hindered by the requirement – under the Rome Statute and South Africa’s own implementation of it – to arrest foreign heads of state wanted by the ICC and hand them over to that court in The Hague.

This preamble suggests the obligation to arrest such heads of state complicates South Africa’s efforts to resolve conflicts. Instead, “South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, but particularly [in Africa].”

The preamble doesn’t name former Sudanese president Omar al-Bashir – who was toppled in April this year – but clearly has in mind the mid-2015 fiasco when al-Bashir, an ICC fugitive, visited South Africa for an African Union summit. The ICC asked Pretoria to arrest him under its ICC obligations but he was allowed to leave. That incurred a severe reprimand from the ICC and from South Africa’s own highest courts and planted the seed of Pretoria’s desire to leave the international court.

The Bill would replace the ICC implementation Act with new measures for South Africa itself to litigate the grave international crimes the ICC adjudicates: genocide, war crimes and crimes against humanity.

The Bill has largely been regarded as a parting shot by the Zuma administration. Ramaphosa, then still a candidate for the presidency of the ANC, was rumoured to be against withdrawal. But at the ANC conference, where he was elected party president, he was also saddled with a party decision to proceed with withdrawal from the ICC.

Nearly two years later, the International Crimes Bill was still languishing in Parliament, giving the distinct impression that Ramaphosa was allowing it to die a natural death – not wanting to kill it outright, as that would be deliberately thwarting ANC policy, but also not wanting to pass it for whatever reason.

Perhaps because withdrawing from the ICC runs contrary to Ramaphosa’s goal of re-shaping South Africa’s foreign policy around the core values of multilateralism, accountability and good governance. Withdrawal would send a bad message to the international community – including, perhaps, desperately needed investors – that South Africa was not fully committed to the rule of law.

Then on 29 October, the bill appeared on a list of a dozen bills “revived by the (National Assembly)”, according to Parliament’s website. This prompted media reports that the government had started ICC withdrawal plans.

But have Ramaphosa and his Justice Minister Ronald Lamola made a deliberate decision at last to implement the ANC decision to withdraw? Or are they going through the motions of doing so to keep the Zuma/Ace Magashule recalcitrant faction of the ANC sweet?

The truth may be closer to the latter notion. It seems the International Crimes Bill was “revived” procedurally rather than with deliberate intent. All business before Parliament lapsed with the previous administration before the May elections. And so, on 29 October all of that business was revived with a blanket resolution. It seems Ramaphosa and Lamola are still kicking the ICC can down the road, and the Bill is unlikely to make it onto the justice portfolio committee’s heavy workload this year.

It doesn’t make much sense to revive the International Crimes Bill, especially now. The International Court of Justice (ICJ) is currently considering whether or not the ICC should grant immunity to sitting heads of state. The ICJ could well make that ruling, in which case South Africa’s withdrawal from the ICC might become unnecessary.

Legally, also, it makes no sense to withdraw from the ICC and repeal South Africa’s own ICC law, says Allan Ngari, senior researcher at the Institute for Security Studies. This would not absolve South Africa from its obligations to prosecute heads of state for genocide.

“The prohibition against genocide is a peremptory norm – a fundamental principle in international law accepted by states and to which no derogation is permissible; not even in cases where diplomatic immunity applies,” he says.

Ngari believes that even if South Africa pulled out of the ICC its own courts would again find against the government if it failed to prosecute or extradite a sitting head of state wanted for genocide, war crimes or crimes against humanity.

That being so, South Africa is merely trying to reinvent the wheel by proposing a new international network to prosecute those responsible for ICC-level crimes. Instead, it should stay in the ICC and make use of the existing network of its 122 member states.

Meanwhile, in Sudan itself, the Forces of Freedom and Change coalition is calling for al-Bashir to stand trial at the ICC on charges of genocide, war crimes and crimes against humanity he allegedly perpetrated in crushing the rebellion in Darfur more than a decade ago.

That might or might not happen. But imagine if it does. If South Africa then pulls out of the ICC because of al-Bashir, it would find itself in the absurd and embarrassing predicament of defending someone whom even his own country has abandoned. And Pretoria’s implicit argument that it needed to withhold al-Bashir from ICC prosecution, to safeguard its ability to pursue peace in Sudan, would look increasingly tendentious.

For such peace as Sudan now enjoys has arguably occurred precisely because its people themselves – with some military help of course – rose up to get rid of al-Bashir. Had he been arrested in Sandton in July 2015 perhaps change would have come sooner? DM

Peter Fabricius is an Institute for Security Studies consultant.