Last year South Africa announced its decision to withdraw from the International Criminal Court (ICC). But the country's efforts were stalled when the Pretoria high court ruled in February this year that President Jacob Zuma's administration had acted unlawfully, forcing the country to revoke its notice of withdrawal.
For the court, South Africa's decision was particularly problematic as it went against efforts to advance international justice; and, tellingly, the executive tried to bypass Parliament in doing so. The executive had also tried to bind South Africa - and future generations - to a toxic international nuclear power treaty with Russia. This move was blocked by the Cape Town high court in May. Again, Zuma's executive had unlawfully attempted to bypass Parliament.
Yet the executive is back at it.
Last week, Justice and Correctional Services Minister Michael Masutha flew all the way to New York to announce that South Africa would try, again, to withdraw from the ICC. For a government so intent on leaving the court, it is curious that the minister saw it necessary to expend public funds to deliver the message in person. Why not simply send a diplomatic note?
The issue of immunities for heads of state is one that deserves serious attention
More damaging were the optics and the timing. On the one hand, Masutha straight-facedly sought to suggest that South Africa had to withdraw so it could better pursue its role as peacemaker in Africa. On the other, Zuma's government was perceived as cosying up to the likes of Sudan's President Omar al-Bashir and other African strongmen.
Masutha's speech was a depressing one to the ICC's Assembly of States Parties (ASP) - not only because of its message, but also because it comes at a time when South Africa's standing in the world's eyes is near Zuma-bottom. People sat in frustration and quiet (in)dignity while he told them he'd soon submit to Parliament South Africa's intention to withdraw. He would also introduce a bill to scrap South Africa's Implementation of the Rome Statute of the ICC Act 27 of 2002 (a piece of legislation heralded by our courts as world-leading, and considered by the world to be so). The ultimate motivation for this, said Masutha, was that South Africa was upset with the ICC's decision against it on 6 July 2017 for failing to arrest Al-Bashir; and the court's failure, in particular, to recognise the immunities that Al-Bashir was said to be entitled to as head of state.
The tragedy of lost leadership was apparently lost on Masutha.
The issue of immunities for heads of state is one that deserves serious attention, and the ICC and the United Nations Security Council have done themselves no favours by not confronting it clearly and promptly. But instead of using this as the basis for withdrawal, South Africa could lead the legal and political details of those debates.
The tragedy of lost leadership was apparently lost on Masutha
As the Institute for Security Studies' (ISS) Ottilia Anna Maunganidze notes: 'These discussions are critical for the future of international criminal justice. South Africa has great potential here instead of acting like a petulant spoiler.' South Africa could set the tone by working to improve the ICC from within, and could help set the ICC's agenda.
This is Masutha's opportunity to act like a leader. Had he been more like Nelson Mandela, and Zuma less like Al-Bashir, we might have considered ourselves poised to lead in the following ways.
First, South Africa would accept the ICC's 6 July decision as the last word (for now) on the topic of immunities. Then, South Africa could have engaged with other States Parties to reform the Security Council process of referring matters to the ICC. The fear of politicised and opportunistic referrals by the Security Council, and the financial burden placed on the court that results from them, should be carefully considered by the ICC to ensure it isn't doing anyone's business but its own. In Africa alone, 33 countries are parties to the Rome Statute; if coordinated, their joint effort would represent the most powerful bloc within the treaty system.
Second, South Africa could help the ICC dispel a sense that its prosecutor is overly selective in the cases her office is willing to entertain, avoiding cases (think Palestine) where powerful proxy states like the US would prefer the court to look the other way. South Africa could lead the pack of states that genuinely want a court liberated of its political shackles and that puts its resources where its mouth is: towards prosecuting suspected war criminals without favour.
SA's decision to withdraw from the ICC went against efforts to advance international justice
Third, South Africa could help solve the issue of immunities and constructively debate the problem of heads of state charged by the ICC. Here, South Africa and others would direct efforts at the UN Security Council by insisting that where the council intends to remove immunities from state officials when sending cases to the court, it should do so unambiguously.
The council could also be encouraged to improve its consultation process with African states and the African Union (AU) on ICC matters. South Africa is ideally suited to contribute to this process of reform and to serve as a bridgehead. This would also provide a worthy entry point to UN Security Council reform more generally.
Unless it is improved to build impartiality and neutrality in its work, the Security Council will continue to contribute to a view that its referrals are sinister political ploys rather than efforts at achieving universal accountability for mass atrocities.
Now is the time to get serious about Africa's and South Africa's commitment to international criminal justice, reform of the ICC, the Security Council's relationship with the court, and how to resolve the real tensions between the AU and the ICC. For its part, the ICC should be consistent and seriously work to revitalise commitment to international criminal justice.
By re-engaging constructively with the ICC, South Africa would display a recommitment to values so sorely lost or threatened under Zuma's government: accountability, the rule of law, shared values, and principle.
Max du Plessis, Advocate, South Africa; Senior Research Associate, ISS; Associate Member, Doughty Street Chambers, London