South Africa’s Intention to Withdraw from ICC

21 Oct 2016
Lawyers for Human Rights (LHR) has noted reports that the Government of South Africa has filed a note verbale to the United Nations of its intention to withdraw from the Rome Statute of the International Criminal Court. LHR is concerned that this action has not complied with the Constitution and domestic legislation relating to our obligations toward international criminal justice. Moreover, we are concerned that such a move will leave the victims of the world’s most heinous crimes with no voice and no place to seek justice. South Africa has played an extremely important role in the development of the court and the expansion of universal jurisdiction for international crimes.  As a leader on the African continent, South Africa has been instrumental in creating an international court which would ensure that crimes against humanity have no place in the 21st century.  While far from a perfect institution, the ICC has played a role in the investigation of gross human rights violations committed by governments, particularly in Africa. 
However, this is where much of the criticism has arisen.  The ICC has been accused of bias against African governments and allowing leaders of other powerful nations, such as the United States and the United Kingdom, effective immunity from prosecution for many condemnable, and perhaps criminal, actions committed since the inception of the Court.  We note that the vast majority of the cases were referred from African countries themselves.  We are of the view, however, that truly universal jurisdiction is a goal which can be achieved by working within the structures of the ICC rather than from the outside. 
Universal jurisdiction is the term used to define the obligations that all states should have to ensure that those accused of war crimes, genocide and other crimes against humanity face justice.  It is a firm commitment that all states should strive toward.  In South Africa, we have adopted the Implementation of the Rome Statute of the International Criminal Court Act of 2004 which saw the incorporation of these major crimes within our legal system.  The Constitutional Court confirmed this in its 2014 judgment relating to the investigation of crimes against humanity in Zimbabwe. 
This is, of course, one of the key features of international criminal justice: complementarity.  This concept places the burden on member states to prosecute international crimes and the ICC will only step in when a state is unable or unwilling to do so.  By incorporating complementarity into South Africa’s criminal justice system, we have effectively adopted this approach.  The notice of intention to withdraw has no effect on our legislation.  Parliament must play an active role in ensuring that those who commit crimes against humanity are held accountable in South Africa.  We are of the view that this is best accomplished from within the ICC structures and not from outside.  This will include putting pressure on countries like the US and the UK to fully commit themselves to the principles of universal criminal jurisdiction. 
African institutions remain important tools for justice on the continent.  This includes the AU political structures such as the Peace and Security Council, but also the independent structures such as the African Commission and the African Court on Human and People’s Rights.  But these institutions remain out of reach for most victims of international crimes, including the estimated 300 000 people who were killed during the alleged genocide in the Darfur region of Sudan.  The allegations of genocide should be proven in a court of law (whether domestic or international) and the victims of such attacks should be able to access justice.  At the moment, however, the African Court does not permit claims by non-state actors, except for the 5 countries which have signed the optional protocol, and the African Commission suffers from a serious lack of resources and funding.
Rather than the destruction of institutions, we call on the Government of South Africa to actively build institutions and remain on the path toward universal jurisdiction.  By committing to withdrawal, South Africa is joining the likes of Burundi and Rwanda in withdrawing from international institutions.  African victims have as much of a right to access justice as heads of state have to due process.  The Constitutional Court will determine next month whether such heads of state enjoy immunity and we must wait for the Court to come to a decision.  It is worth being a part of the ICC institution, even if it is to make it better and more just.   It is equally worth being a part of our own continental institutions, as long as they are accessible and hold perpetrators to justice.  We are a nation of builders and must not lose this opportunity to take on a leadership role once again. 
For more information, please contact:
Jacob van Garderen
National Director
Lawyers for Human Rights
Tel: 082 820 3960