South African government backing away from ICC withdrawal: report

Tuesday, November 03, 2015

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The South African government is having second thoughts on withdrawing from the International Criminal Court (ICC) despite a decision undertaken by the ruling African National Congress (ANC) party last month to that effect, diplomats said.

The ANC National General Council (NGC) had announced that it has voted unanimously to begin the process of leaving the ICC and unsigning the Rome Statute which is the founding charter of the Hague-based court. It further declared that it will push for an African en masse withdrawal from the tribunal in the upcoming African Union (AU) summit next January.

But the South African Mail & Guardian (M&G) newspaper reported that a difference of opinion emerged in the government which has stalled the matter and that it is now reluctant to implement the party’s resolution.

The newspaper quoted an unnamed senior government official in the diplomatic corps as saying that the stark differences in how to handle the country’s proposed withdrawal from the ICC are mainly between those in government who understood the possible negative impact of that action and politicians who simply wanted to take the hard line to make a point.

“We regrouped as diplomats and said: ‘Yes, we want to consider and respect the movement’s resolutions, but there are issues that we need to consider first,’” the official said.

“We [South Africa] are the leader on the continent and we are the ones who stopped African countries from withdrawing from the ICC [in 2013 AU summit]. We can’t engage on that matter before we make the necessary consultations with other African countries” he added.

South Africa turned sharply against the ICC following its decision to allow Sudanese president Omer Hassan al-Bashir to attend the AU summit in Pretoria last June despite its theoretical obligations to arrest him in accordance to arrest warrants issued against him in 2009 & 2010.

The Sudanese leader fled the country hours before the High Court ordered his arrest and the South African government told the judges that he sneaked out without their knowledge.

Prior to that, ICC judges has dismissed arguments by South African legal representatives on Bashir’s immunity and insisted that its the government’s duty to arrest him.

The government lost a fresh appeal bid before the local High court and has now petitioned the Supreme Court of Appeals (SCA) to review the case anew.

Some observers speculated that South Africa’s rush to withdrawal was to allow Bashir to attend the Forum Of China-Africa Cooperation (FOCAC) scheduled for next December in Johannesburg. But legal experts said that the withdrawal would not have been effective anyways until a year later.

The same government source stressed to M&G that there will not be “any movement on this [withdrawal] any time soon. In fact, expect the government position to say after looking at the NGC resolution and reviewing our participation in the ICC: ‘We don’t think it’s a good idea to pull out of the ICC at the moment’”.

A second diplomatic source told the M&G that international relations officials are not convinced by the reasons behind the ANC’s resolution. This second source said South Africa’s withdrawal from the ICC would, if it happens, affect the country’s efforts to transform the United Nations Security Council (UNSC).

The source said while the Security Council cannot impose sanctions on Pretoria because of non-cooperation with the ICC, withdrawing from the court would affect the country’s international status.

The first government source said that even if pressure was exerted on government to withdraw from the ICC, starting the process “won’t happen in the next three years. If you’re expecting a mass exodus from the ICC because South Africa is pulling out, don’t hold your breath.”

A technicality in the ANC’s resolution could be used to work around the matter, the source said. “The narrative in government is that the NGC did not say pull out. It said: ‘Review your participation in the ICC.’ Our role as diplomats is to remain sober instead of being influenced by political emotions. These are people who’ll say: ‘Break ties with the West and go with China,’ without thinking about the implications. Europe is still our strategic trade partner.”

Another diplomat said that for now, officials are telling their global counterparts that withdrawing from the ICC is merely a party decision and not the official government position.

M&G sources also confirmed that Bashir will not return to South Africa for FOAC summit in December despite earlier indications that he would. The Sudanese delegation would instead be led by one of that country’s Cabinet ministers.

“South Africa will not take a risk of inviting al-Bashir here again after what happened,” the first government source said. “Do you think he also wants to go through all that [being sneaked out of the country for fear of arrest] again?”

ANC spokesperson Keith Khoza said the party’s resolution said the country should pull out of the ICC as a “last resort”.

“The position of the ANC was that the government must engage other governments within the African Union, so that it’s an AU matter. They must explore other means of addressing what has been identified as problems,” he said. “If that fails then they must withdraw, so withdrawing is the last resort.”

But ANC national executive committee member Obed Bapela, speaking on behalf of the international relations commission at the NGC, firmly stated that the ANC wants South Africa to start the process of leaving the international court.

Bapela’s position is supported by the resolutions published on the ANC website, which say that “the NGC took the decision to ask the ANC-led government to begin the process of withdrawal of its membership of the ICC, preceded by the discussions that are taking place among the member states of the ICC and those taking place within the African Union on the ICC matter”.

The Ghanaian president said last month that despite perception of bias by the ICC, it remains an important institutions for Africa.

“The ICC is useful and several African leaders have appeared before them and I think that the ICC is still relevant and still prosecuting cases of human rights abuses. …The ICC serves a purpose and I guess that we must take the concerns of Africa on board, Africa feels targeted whether rightly or wrongly; it’s like African leaders are the only people arraigned before it and I think the African union, ICC and the UN must discuss it”.

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