SA vs ICC: Six degrees of separation

2016-11-20 06:39
Fatou Bensouda is chief prosecutor at the International Criminal Court in The Hague, Netherlands. South Africa and other member states have announced their intention to leave. Picture: Baptiste Giroudon / Paris Match

Fatou Bensouda is chief prosecutor at the International Criminal Court in The Hague, Netherlands. South Africa and other member states have announced their intention to leave. Picture: Baptiste Giroudon / Paris Match

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After years of grumbling about the inequalities which characterise various multilateral organisations, a fed-up South Africa took action last month and joined a growing bloc of dissenters, including Gambia and Burundi.

South Africa is in good company.

Its “Haixit” is the result of an unsurprising culmination of factors related to the country’s efforts to anchor its foreign policy away from an overbearing Western approach. This is in line with what many in foreign policymaking circles feel is an overreliance on the fickle West to determine multilateral initiatives.

South Africa has been an exemplary global player post apartheid, but what has this benefitted it?

Its input has been ignored in crucial decisions, especially those to do with Africa.

South Africa’s official announcement of its intention to leave the International Criminal Court (ICC) came days after Burundi’s Parliament voted overwhelmingly to withdraw from the court.

Looking at the list of dissenting countries, one is confronted with a diverse group, espousing an assortment of political ideologies. This highlights the need to broaden our scope in explaining South Africa’s reasons for its withdrawal.

This entails examining how the country’s national interest manifests in the geopolitical space in which it practices its foreign policy.

In deciding that its interests were no longer compatible with the vagaries of the Rome Statute – the treaty, signed in Rome in 1998, which paved the way for the ICC to come into force in July 2002 – South Africa cannot be more impassive than Malaysia, India, Singapore, Turkey, the Vatican and Vietnam.

These are six of the 42 countries that have never signed the treaty – and have never expressed a wish to join the ICC.

Then there are Thailand, Algeria, Monaco and Morocco – some of the 32 countries who signed but have yet to ratify the treaty.

Until this week, Russia formed part of this bloc. On Wednesday, President Vladimir Putin decided to withdraw his country’s signature, after ICC prosecutors said Moscow’s 2014 annexation of Crimea could be classified as an act of war.

Another case in point is the US, which signed the treaty, but later declared its intentions not to ratify it and renounced any legal obligation to the ICC.

What does all this mean?

Countries have interests. Decisions on how to pursue them often take place far from formal pronouncements. Interests are cold and calculating – and, as a matter of course, elicit criticism.

But the wisdom of choosing one path over another for the sake of national interest is redeemable, or condemnable, only in terms of the result of this choice.

This gives rise to six reasons which may explain South Africa’s withdrawal from the statute.

Firstly, the repudiation can be seen as an attempt to regain sovereignty regarding decisions on policy and international relations. South Africa signed the treaty on July 17 1998.

It was among the first 10 countries to do so. All but two were African.

The world was in genocide prevention mode. Guilty at having done little to prevent the Rwandan genocide only four years earlier, the refrain “never again” reverberated as nation after nation followed suit and signed the Rome Statute.

For South Africa, the returns from the idealistic foreign policy niche it carved out during the eras of former presidents Nelson Mandela and Thabo Mbeki have come with more cost than benefits.

Its withdrawal serves as an admission by South Africa to being part of a complex world where there are no clear-cut or permanent solutions. Interests change, but they must come first.

Secondly, South Africa’s exit may be seen as the culmination of a series of events – characterised not, as many observers have averred, by the failure to honour its obligations to the ICC and arrest Sudan’s President Omar al-Bashir while he was in the country last year – but events dating further back in time.

The bombing of Libya in 2011 by military group the North Atlantic Treaty Organisation (Nato) resulted in a breakdown of trust in Western goodwill. South Africa learnt the hard way that it may have been naive in taking Western states at their word.

It is not implausible to imagine that the administration of President Jacob Zuma never recovered from feeling it was tricked into voting for Resolution 1973 – which provided legal grounds for military intervention in Libya – in March 2011 at the UN Security Council.

While its counterparts in Brazil, Russia, India, China and – which, with South Africa, form the Brics coalition – abstained, South Africa and Nigeria joined in a lofty project to take “all necessary measures” to ostensibly protect civilian lives.

Libya, however, would become a cauldron of more violence, leading to leader Muammar Gaddafi’s death seven months later.

Thoughts may linger among Zuma’s administration that a Nato alliance could one day try a “regime change” project in Pretoria.

Already, a significant body of opinion sees a third hand in the country’s internal unrest, student protests included.

Thirdly, South Africa is emulating three of its Brics partners – India, Russia and China – which have never ratified the treaty. South Africa may not want to be seen as a weak link.

Fourthly, the exit serves as Pretoria’s vote of no confidence against the multilateral structure, which has failed to reform and let African countries play a more influential role.

By withdrawing, South Africa provides leadership over the most ardent dissenters on the continent, a role hitherto occupied by Zimbabwe.

Tired of being outshone by that country’s head, Robert Mugabe, Zuma may be setting up a legacy project which, along with his taking South Africa into Brics, sees it play a leading role.

Fifthly, South Africa is leaving the ICC because it can. Unlike many African countries which have also voiced opposition to the court but fear precious aid being withdrawn by Western donor countries, South Africa carries no such insecurity.

Sixthly, South Africa is seeking to improve its status on the continent. Its diplomats are tired of being told in Africa’s capitals about honouring the bonds forged in liberation trenches.

In 1962, Mandela flew from Tanzania to Lagos in Nigeria to attend the Conference of Independent States.

The journey included a layover in Khartoum, capital of Sudan. Having slipped out of South Africa, Mandela had no travel documents besides a flimsy piece of paper he was given by officials in Tanganyika (later Tanzania).

An old Sudanese immigration official read the suspicious note, on which was scribbled:

“This is Nelson Mandela, a citizen of the Republic of South Africa. He has permission to leave Tanganyika and return here.”

It was not a travel document in any shape or form. But with an empathetic smile, the old man waved Madiba on, saying: “My son, welcome to the Sudan.”

Dr Mnyandu is an expert on East Asia-South Africa relations and a professor in the department of African studies at Howard University in Washington, DC

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Read more on:    nato  |  icc  |  omar al-bashi  |  jacob zuma

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