If South Africa presses ahead and withdraws from the International Criminal Court, we will be isolated on the continent and our human rights foreign policy will ring hollow. There are 34 African countries that have ratified the Rome Statute of the ICC, and most of those who had threatened to pull out of the ICC have now reneged and intend to remain.
What we need to do is to improve the ICC from within and help to set the agenda. The reality is that the ICC is the only game in town, and unfortunately the African Union does not yet have the capacity to efficiently and expeditiously try crimes against humanity and gross abuses of human rights. If the African caucus within the ICC were to push a reform agenda, it would have a powerful voice.
Despite all the political manipulation by the Western powers of the ICC’s agenda, it still never seemed right that South Africa was siding with notorious human rights abusers like the governments of Burundi and Sudan to withdraw from the Court.
It was a strange irony that former President Zuma, who fought so hard to bring peace to Burundi, ended up giving political cover to Burundi’s president, who will go down in history as having presided over crimes against humanity. The reasons our Minister of Justice Michael Masutha gave to the UN for why South Africa had decided to withdraw from the ICC were nonsensical. Masutha tried to suggest that South Africa had to withdraw from the Court in order to better pursue its role as a peace-maker on the continent.
South Africa is flexing its muscles right now as a peace-maker on the continent, and will continue to do so from Madagascar to South Sudan, but our membership in the ICC never precludes us from brokering peace. Our decision to withdraw from the ICC was so shallow that the decision was successfully challenged, with a full bench of three judges in the Pretoria High Court. The judges ruled emphatically in February last year that the Zuma administration had acted unlawfully by trying to remove us from the ICC, and by attempting to bypass parliament in the process.
What likely drove Masutha’s position at the time was that the Zuma administration was angered by the fact that the ICC had decided to rule against it in July last year in the Hague due to the government’s failure to arrest President Omar al-Bashir for genocide. The South African government was also angered by the Court’s failure to recognise the immunities Bashir was supposedly entitled to as head of state.
But frustration over the Bashir ruling as well as the Court’s preoccupation with African human rights abuses, as opposed to those in other countries, was no reason to throw the baby out with the bathwater. If we look at what has been transpiring over the past two years in Burundi, for example, we desperately need the ICC to try crimes against humanity. The ICC had announced a preliminary examination into the situation in Burundi.
There was also a call for other countries to consider investigating and prosecuting through their national courts, under the principle of universal jurisdiction, Burundians found on their territory who are believed responsible for ordering and carrying out torture and other serious rights violations.
To date, no African country has heeded that call, and nor are they likely to. The African Court of Human and People’s Rights is not capacitated or yet mandated to try such cases anyway. So the perpetrators continue their reign of terror with impunity.
Burundi had a referendum last week on whether a new constitution should be adopted which would enable President Pierre Nkurunziza to remain in power until 2034. It was announced this week that Nkurunziza won the referendum, and he is now allowed to remain in power for two consecutive seven year presidential terms. To ensure that the referendum was passed in his favour, the security forces embarked on an even more severe reign of terror, worse than what the country had already seen since he extended his stay in power in 2015. Human Rights Watch has extensively documented the type of human rights abuses that have been carried out recently in Burundi by both the security forces, ruling party members, and Imbonerakure, or youth wing of the ruling party. According to HRW’s findings, the security forces have beaten detainees with hammers and steel construction bars, driven sharpened steel rods into their legs, dripped melting plastic on them, tied cords around men’s genitals, and used electric shocks.
The question we need to ask ourselves is: Would Madiba have wanted us to turn a blind eye, or would he have expected South Africa, in the context of the ICC, to ensure the perpetrators were brought to justice?