South Africa: Ramaphosa Can Renew South African Leadership By Recommitting to the ICC

6 February 2018

Re-engaging constructively with the ICC would underline the new ANC leader's commitment to principles that have been lost or threatened over the past decade.

With Cyril Ramaphosa's election as African National Congress (ANC) president, President Jacob Zuma's highly controversial reign in South Africa is coming to an end. Under Ramaphosa's leadership, change has been immediate: in the first few weeks of 2018 talks are already afoot for President Zuma to step down, serious steps have been taken to undo corruption in state-owned enterprises like Eskom (South Africa's dominant energy supplier), and Ramaphosa (not Zuma) was South Africa's representative at the World Economic Forum in Davos.

One of the issues that requires immediate attention is South Africa's continued involvement in an international institution that it was instrumental in building, the International Criminal Court (ICC).

The court has given rise to controversy in many African states, and the African Union has made many critical remarks about it. Just this past week the AU Assembly called on African states to oppose the ICC's decision on the legal obligation on South Africa to arrest and surrender President Omar al-Bashir of Sudan. The AU will also seek a resolution from the UN General Assembly requesting an advisory opinion from the International Court of Justice on the question of immunities of heads of state and the ICC.

Yet, the ICC remains a beacon of hope for victims of atrocities. Under Zuma's government, South Africa has tried twice to withdraw from the ICC. The first effort in December 2016 was undone by a successful court challenge by civil society - with the South African High Court ruling in February 2017 that ministers had unconstitutionally bypassed parliament in their rush to leave the ICC.

But the government tried again in December last year, announcing that South Africa was withdrawing, and that this time parliament would be engaged. Just before Ramaphosa won the ANC leadership, the minister of justice had introduced a bill in parliament to allow South Africa's exit from the ICC and to deposit a notice of withdrawal from the court at the United Nations.

The government's arguments in support of its withdrawal have been subjected to withering criticism by many, including a number of retired justices of South Africa's Constitutional Court, among them Justice Catherine O'Regan, now director of the Bonavero Institute of Human Rights at Oxford, and Justice Navi Pillay, the former UN human rights commissioner and herself a previous judge of the ICC. So too, the government's decision has been criticized heavily by civil society and by the Democratic Alliance, the official opposition.

At the international level, the prospect of a withdrawal by South Africa induced fears that such a move would threaten the existence of the ICC itself in Africa. Those fears were given life when the African Union decided later in the year to adopt a strategy calling for a collective withdrawal from the International Criminal Court. The consequence for African victims of the world's worst crimes would be massive, particularly in countries where there is scant chance of their receiving justice before domestic courts.

And so, there is an opening now - with Ramaphosa's leadership - for South Africa to renew its support for the ICC. By re-engaging constructively with the ICC, South Africa would display a recommitment to principles that have been lost or threatened over the past decade, including accountability. While Ramaphosa campaigned domestically on a ticket of accountability and respect for the rule of law, the obvious parallel - and resounding confirmation of this commitment globally - would be to emulate that commitment at an international level. There can be no easier or more profound means of doing so than by re-dedicating to the work of the ICC, and by withdrawing the notice of withdrawal.

Beyond the ICC, South Africa is arguably well positioned to take up an immediate leadership role in the area of foreign relations and thereby enhance its international image while advancing a broader African agenda. The ICC is only one of the international institutions that would benefit from the support of a reinvigorated South Africa. For example, South Africa has long pushed for reform of the UN Security Council. Multilateral agreements and other forms of global cooperation are needed to combat terrorism, international crimes and human rights abuses, and to deal with global challenges such as armed conflict, humanitarian crises and migration. Strong states with principled commitment to the values of accountability and human security need to take the lead.

Dr Max du Plessis

Associate Fellow, International Law Programme

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