Former Judge of the Constitutional Court, Justice Richard Goldstone, delivered the keynote address. He opened the discussion by setting the context of international criminal justice, stating that international courts are driven by politics. He noted that politics lay at the heart of these spaces, and without it courts cannot operate and succeed. The notion of politics dates back to the contentious nature of the Nuremburg Trials, which ultimately spearheaded modern international criminal law. From there, Justice Goldstone explained that over the next 50 years, this international framework drew to a halt during the Cold War, and only resuscitated in 1993 when the Security Council of the United Nations decided to establish the first ever International Criminal Court with the United Nation’s International Criminal Court for the Former Yugoslavia.

In a move to reiterate the importance of politics in this discourse, Justice Goldstone gave the audience a personal account of his journey into international criminal law. He shared that when he was invited to become the Chief Prosecutor of the Yugoslavia Tribunal, he had never acted as a prosecutor, knew very little about Humanitarian Law or the former Yugoslavia, thus on each of those accounts he described himself as initially unqualified for the position.  His nomination was only a result of the politics within the Security Council, which was reinforced by South Africa’s transition into democracy led by Nelson Mandela.  

Mandela had personally convinced Justice Goldstone to accept the position, saying that it would be unfortunate to refuse the UN after all that they had done for South Africa in terms of bringing apartheid to an end.  Justice Goldstone concluded his personal account humbly – acknowledging that ‘politics’ had the power to significantly influence the victims in Bosnia.  Nonetheless, it was during this time that South Africa quickly became a leading supporter of the ICC and along with other “like-minded” nations, led the pack towards gaining approval for the Rome Statute

Justice Goldstone explained that South Africa became the first member of the Assembly of States Parties to promulgate legislation to incorporate and domesticate the provisions of the Rome Statute. This was done through the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which is central to the argument as to the legality of South Africa’s recent withdrawal from the Rome Statute.

He then offered a further examination of South Africa’s choice to withdraw. Justice Goldstone explained that 34 African states had ratified the Rome Statute – more than any other continent. Out of the 10 countries that have appeared before the ICC, nine of them have been African.  Yet only two of these countries, Kenya and Cote d’Ivoire, were referred because of the powers of the prosecutor; three of the other five approached the Court to investigate war crimes in their own country and two were referred by the UN Security Council. The rhetoric against the ICC is that the tribunal is “anti-African” and there is an imbalance whereby only African states are referred to the Court. The Justice explained that although the numbers might suggest this, the reasoning behind these decisions does not.

He described the reasons why the African Union and some African states object to the Court. The first reason he listed was the issue of sovereignty. He argued that no government wanted international bodies to monitor or diminish their sovereignty. He gave the example of the United States, which tends to have an ambivalent attitude towards the ICC, but have chosen to stay outside of the tribunal.  Thus, many African nations feel that it is unfair that smaller nations must be subjected to the jurisdiction of the Court, while larger ones are exempt.  In addition, he acknowledged that the second reason lay with the weakness of the Security Council. The final reason he shared was that the indictment of African leaders, like President al-Bashir, instilled a sense of fear into other African leaders that they too may be indicted by the ICC. These factors worked to perpetuate the perspective that the ICC is “anti-African”.

The Justice conceded that South Africa was a different case, because there is no question of war crimes being committed in the country. He asserted that the withdrawal was purely for internal political reasons. The government disapproved of the Supreme Court of Appeal’s decision that the failure to arrest President al-Bashir was unconstitutional and unlawful. Additionally, he suggested that the government’s notice to withdraw was inconsistent with the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Act), which provides that South Africa has to comply with the Rome Statute. In short, the Justice declared that the Executive is not entitled to give a notice like this, which is inconsistent with the Act.

It has become evident that South Africa’s foreign policy towards the ICC has changed radically since its enthusiasm under the Mandela era.  Once a nation which championed the force and protection of international law, South Africa may now be turning its back on the jurisprudence that shaped its transitioning democracy. Justice Goldstone was a pioneer in the fight to dismantle the apartheid system, and acknowledged that a decision to withdraw from the ICC is at odds with the nation’s guiding democratic principles.  Although he describes this move as “heartbreaking”, he remained optimistic in the light of six other African nations having issued statements giving full support to the ICC.  South Africa’s decision to withdraw has not prompted a rush of other African nations to also withdraw.  

Since 1994, South Africa has been an integral member of the global community and has helped bring justice to those who have committed atrocities and the victims who have suffered. Justice Goldstone concluded by acknowledging that the government’s move to withdraw from the Rome Statute is inconsistent with the very principles that paved the path for democracy.  

By Kiah Murphy: Intern, Centre for Constitutional Rights