The discussion document goes on to state that “The [Rome] Statute and the unbalanced manner in which the western powers prefer it to be implemented does not give due regard to fundamental issues of the need to strike a balance between peace and justice”. The document purports to speak for the 34 African States who are signatories to the Rome Statute and laments the Rome Statute’s implementation, which seemingly ignores efforts on the continent to address peace and conflict. Yet without a hint of irony, the document goes on to urge the African Union (AU) and its member states to “…urgently finalise efforts to enable the African Court on People and Human Rights to discharge its expanded mandate.” This is a tacit admission of the fact that the continent cannot effectively bring to book perpetrators of gross human rights violations.

The Malabo Protocol (the Protocol) was adopted in June 2014 by members of the AU, including South Africa, and aims to extend the jurisdiction of the existing African Court on Justice and Human Rights (ACJHR) to include crimes under international law which are similar to those of the ICC. However, the Protocol spectacularly includes immunity for Heads of State. Given the well-reported and documented atrocities often committed by Heads of State on the continent, immunity would render the ACJHR useless in the fight against impunity for gross human rights violations. In any event, members of the AU have had a lethargic response to the Protocol, with to date, only nine signatories out of the required 15, to ensure that the provisions of the Protocol see the light of day. This suggests that the concerns articulated by the governing party’s discussion document – that the skewed power relations in the Rome Statute favour Western States over poorer States of the South – are but a smokescreen to shield errant States from international scrutiny and accountability.

The discussion document too, fails to consider the fact that other African states, notably the Gambia, Botswana, and most recently Zambia, when faced with the question of whether to withdraw country membership of the ICC, unequivocally threw their weight behind the international justice body. This, despite the AU’s resolution in early 2017 to do “further research on the idea of collective withdrawal” by African states from the ICC.

Burundi, wracked by years of conflict – in which the Head of State, President Pierre Nkurunziza, has been implicated in human rights violations by organisations, including Human Rights Watch – has formally given notice to withdraw from the Rome Statute. This is the company in which South Africa finds itself. The recent ICC ruling that South Africa failed to comply with the Rome Statute in failing to arrest and surrender President Al-Bashir seems to have strengthened the resolve of the governing party for South Africa to withdraw from the ICC.

It is true that there is a need for reform of the UNSC – as the current structure is an outdated reflection of the post-World War II geo-political landscape. It is necessary for the global South to be represented and to be given a meaningful voice on the UNSC. It is also true that the African continent has witnessed gross rights violations in the 20th century, some of which continue to this day, with very few perpetrators ever being brought to book. South Africa, as an economic powerhouse with a progressive Constitution to boot, occupies an influential position in articulating the combined concerns of the rest of the continent. As such it is imperative that South Africa remains as a member of the ICC and continues to advocate for meaningful structural changes within the ICC and other reforms to international bodies, including the UNSC. As things stand, South Africa very much risks international isolation, risking the gains made, post-1994, as a credible voice for the interests of the continent. 

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights

*The third in a series of three articles by the FW de Klerk Foundation and its Centre for Unity in Diversity (CUD) and Centre for Constitutional Rights (CFCR), reflecting on the recent ANC Policy Conference.