By Noah Feldman
The new South Africa has been a bastion of respect for human rights, and its decision to withdraw from the International Criminal Court is a sign that something is terribly wrong with the tribunal. And it’s no secret: Since 2005, when it first issued arrest warrants, the court has indicted 39 people, every one of them African.
There are various explanations for this, some of them defensible. But the bottom line is that it was an inexcusable mistake for the court not to pursue other cases. It wouldn’t have been tokenism, because there are, unfortunately, plenty of non-African war criminals. Yet even if it were, the tokenism would have been justified to show that the court is more than the imperialist agent of regime change that many Africans consider it.
South Africa’s unexpected — and devastating — decision last weekto withdraw from the court is not based on any immediate fear that South African leaders would be prosecuted. In that sense, the decision differs sharply from that of Burundi, which was the first nation to initiate withdrawal, just a few days before the South African announcement.
Burundi’s motivation was the prospect of an ICC investigation of the political violence that has plagued the country in the last year, since President Pierre Nkurunziza declared his intention of running for a third term. Of 110 Burundian lawmakers, 94 had voted for the withdrawal, suggesting, if nothing else, consolidation of the political class against the possibility of an investigation that would probably have focused on the president himself.
It’s not terribly surprising that a president in that position would seek to avoid the ICCs jurisdiction by withdrawing. It’s much more surprising that a stable democracy like South Africa, which has a range of international obligations written into its state-of-the-art constitution, would send such a strong message of rejection.
The South African minister of justice, Michael Masutha, offered the explanation that South Africa considered the obligation to turn over foreign diplomats charged by the court to be a violation of its domestic laws that guarantee diplomatic immunity. In June 2015, the South African government failed to turn over Sudanese President Omar al-Bashir, who was visiting for an African Union summit, even after a South African court ordered it to do so.
But the minister’s formalistic explanation rings hollow. South Africa’s constitution incorporates international legal obligations into domestic law, and would certainly be interpreted by South Africa’s progressive courts to trump any domestic requirements of diplomatic immunity.
What makes more sense is that the South African government is consolidating its position of regional and continental leadership by taking a stance that is sure to please other African heads of state. It’s precisely those heads of state who are most vulnerable to ICC prosecution. By weakening the court — and providing thick cover for any other African countries that wish to follow suit — South Africa is giving those leaders a tremendous diplomatic gift.
In other words, the statement that South Africa wants to respect the diplomatic immunity of other heads of state is a way of saying that South Africa wants to do business with African leaders.
The ICC worries African heads of state because it has adopted a prosecutorial policy of going after leaders whom it accuses of being responsible for political violence in violation of international law. Targeting a head of state or government is an attractive and admirable idea for an international body committed to enforcing human rights. In the case of authoritarian or autocratic governments, the leader often does bear moral responsibility for violence. And it would be deeply dissatisfying for an international criminal court to prosecute primarily lower officials who may have committed crimes but did not plan or direct them.
If the court is going to go after government leaders, however, it must confront the concern that, as South Africa’s Masutha put it, it is producing a “scenario of forced regime change by one country on another.” When the prosecution comes from a European geographical base and a court staffed mostly by non-Africans, the regime change has the further feature of seeming “imperialist,” the word used by the chief party whip of South Africa’s ruling African National Congress.
The simple solution for the ICC would have been to prosecute some — any — non-Africans. It’s not like the problem hasn’t been noticed. The ICC itself has held an online symposium of invited experts on what it rather delicately called “the Africa question.”
It must been noted in the ICC’s defense that six African cases brought to it from outside, four by the countries where the violations had occurred and two by reference from the United Nations Security Council. The first four were nondiscretionary, meaning the court had to investigate under its own rules. And in the other two, Sudan and Libya, there were strong grounds to commence investigation.
But that excuse explains why the court has pursued the cases it has — not why it hasn’t pursued others. Admittedly complex rules govern the court’s reach, and it can’t proceed where there are adequate domestic legal processes under way.
Nonetheless, the court’s prosecutors needed to reach more broadly. Initial investigations of cases involving Afghanistan, Colombia, Georgia, Honduras and South Korea could have proceeded more rapidly. The idea that Iraq would be free of crimes against humanity or that the Iraqi legal system could adequately treat them seems highly implausible on its face.
The lesson here is that tokenism isn’t always a bad thing. When it comes to demonstrating the legitimacy of a new and powerful international legal entity, a basic requirement is not only to be balanced but also to appear so.
South Africa’s decision is unfortunate, but the ICC opened the door, and it deserves the primary blame. The court in The Hague stands for the admirable aspiration to hold the worst criminals in the world responsible for their wrongs. But trying to achieve that ideal without pragmatic realism about what seems fair in international politics is a hopeless task.
- South Africa’s constitutional court was supposed to hold hearings on this issue in November, but the government will now drop its appeal.
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