‘South Africa won’t be able to escape International Criminal Court’

‘South Africa won’t be able to escape International Criminal Court’

South Africa wants to withdraw from the International Criminal Court (ICC). Emeritus professor of international law, Willem van Genugten, explains how disturbing this is.

The ICC prosecutes persons suspected of war crimes. According to the South African government, the court focuses far too much on African states, while many of those crimes are being committed elsewhere in the world. The intention to resign from the ICC has been heavily criticized. It would, according to opposition DA, convey an ‘unconstitutional’ message that the country is no longer basing its policy on human rights.

First of all, is it true that the Criminal Court is primarily focusing on African states? “Previously, that was indeed the case,” says Van Genugten. “But that argument has become outdated many years ago. At this very moment, 19 countries are being investigated. Moreover, five of the nine currently pending cases that focus on Africa, have been placed with the ICC by those countries themselves.” The possible retraction from the ICC was, according to Van Genugten, primarily intended to show sympathy for the Sudanese President Al-Bashir. He visited South Africa just last year, while the ICC simultaneously wanted him for prosecution. This generated quite some criticism.

Applause machine

When will South Africa be able to exit? “Within a year,” says Van Genugten. The government has sent a notification to the UN headquarters in New York. From the time of receipt, the counter will commence: one year later that country will have completed its withdrawal from the court. In the meantime, the South African parliament is still yet to comment on the intention of the government. If the parliament consents, South Africa will possibly be the first country to exit. Recently, the government and the Burundi parliament also decided to retire from the ICC, but curiously enough, that country has not yet sent an official notification to the UN.

Van Genugten isn’t able to assess whether or not the South African parliament will approve the government’s intended withdrawal. To his opinion, it’s remarkable that no bill to this order has been submitted yet. “Normally a government would do that on the very same day. The big question now is whether the parliament will act as an applause machine for President Zuma.” This is often the case, but Van Genugten hopes that it will be different this time, that the South African parliament finally realizes what is at stake here.

‘It’s widely said that there are indeed limits to what you can do.’

How undesirable is it really for a country to exit the International Criminal Court? After 18 years there are 124 member countries. Until now, no country has left. “One member less would be a shame,” Van Genugten comments. “But if it happens, it’s just the way it is. You’ll have to look at the longer term. They’ll come back. Or they will pursue other means for ensuring punishment.” Anyhow, there is no escape route here: war criminals can for instance be arrested later on, in another country. And the pressure coming from the rest of the world is huge. “The net is pulled tighter globally. It’s widely said that there are indeed limits to what you can do. Moreover, later on a new South African government might be installed, which will then likely want to become a member again. ”

 An African Criminal Court

Hence, there’s no reason for major alarm. If more countries now decide to retire from the ICC, then that might be a different case altogether. “Then it would no longer be an incident but a pattern and much harder to recover from.” It’s not totally unlikely that this may happen, because the African Union desires to set up its own criminal court. In that case, they would no longer need the ICC. “But the protocol to this purpose has been on the table since 2014, and not much has happened since then. There are many African countries that do not want things to go this way.”

‘The African Union wants to set up a criminal court.’

Why would Africa not have its own court to deal with war criminals? Has the role of colonial Europe, with an international criminal court in The Hague, not been played out by now? “That depends,” says Van Genugten, “every country has the right to work on its future, on its own conditions. What definitely won’t help is vast pressure coming from European and other ICC-minded countries. If one were allergic to something, this would be it.”

But there is a significant difference here. The ICC prosecutes people regardless of their official function or role. Also serving Heads of State. The possible African court would not do so: as long as someone’s serving officially, he or she enjoys immunity. Only after retirement that person can be prosecuted. “In that case, criminals like Al-Bashir can tour around freely throughout Africa, as long as they are president.”

Update 26-10-2016, 14.35u

Gambia also wants to leave the court. Van Genugten does not think that this changes his reasoning.

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