After ignoring a court order from the International Criminal Court (ICC) earlier this year to arrest Sudanese president Omar al-Bashir, South Africa has announced its intent to leave the ICC. Following an ANC policy meeting last week, deputy minister in the presidency Obed Bapela said, “The principles that led us to be members [of the ICC] remain valid and relevant … however, the ICC has lost its direction and is no longer pursuing that principle.”

The ICC has received prolonged criticism for focusing all eight of its ongoing investigations on African nations, with president Jacob Zuma saying, “In the eyes of the African leaders, the ICC is biased.” Many argue that bias is not the case, and few argue that these cases are not deserving of prosecution.

Leaving the ICC would not be an easy process, and despite a withdrawal from the organisation, South Africa would not be absolved of its legal responsibilities.

Prof. Max du Plessis of the University of KwaZulu-Natal (UKZN) explains, “We have domesticated the Rome Statute into our own national legislation, and if we want to pull out of the ICC we will have to pass legislation to that effect. South Africa is obligated to adhere to the ICC’s decisions until we finalise our exit from the treaty.”

Debates and public hearings would be the first step as South Africa tries to retreat from the implementation of the Rome Statute. According to Wayne Ncube from Lawyers for Human Rights, “The Rome Statute establishes the ICC’s functions, jurisdiction and structure.” Following that, legislation would only be able to be changed 12 months after a written notice of intent to withdraw from the ICC is handed over to the United Nations.

The decision to leave the ICC has been widely condemned, with UP’s own Centre for Human Rights saying in a statement published on their website, “Leaving the ICC and undoing this national law would significantly weaken the framework to hold accountable those responsible for massive human rights violations.”

Leaving the ICC will not only bring South Africa’s commitment to human rights into question, but will also tarnish its reputation as a moral authority and set meaningful international justice back decades. It will also affect South Africa’s bid for permanent UN Security Council status.

South Africa joined the ICC in 1998 with hopes of amending its human rights violations and would become the first country to leave the ICC, although it is widely suggested that many other African nations would follow suit. The decision is only a political one at the moment, but lawyers and human rights activists across the globe hope it does not become a legal one.

Illustration: Emmanuel Makhado

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