What would make SA 'flip-flop' on ICC withdrawal?

2016-11-23 12:14
Assembly of States Parties (ICC) meeting in The Hague city in the Netherlands. (Jenna Etheridge, News24)

Assembly of States Parties (ICC) meeting in The Hague city in the Netherlands. (Jenna Etheridge, News24)

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The Hague – If the International Criminal Court's (ICC) goal is to convince South Africa to stop its withdrawal as a member state, it needs to pull out whatever negotiation, bargaining and conflict resolution skills it has. And the clock is ticking.

This was the view of Mark Kersten, a researcher and teacher at the University of Toronto's Munk School of Global Affairs, who spoke at a side event of the Assembly of States Parties (ASP) in the Hague on Tuesday.

South Africa's notice last month to withdraw, along with Gambia and Burundi, remained a hot topic in the plenaries and corridors as debate raged on as to what the court's future would be.

The reasons for leaving the independent organisation differed for each country.

Complex situation

South African officials stated that the country's obligation to the ICC and its founding treaty, the Rome Statute, conflicted with customary African Union law to grant heads of state immunity.

However, speeches at various side events and informal conversations outside of meeting rooms pointed to a situation that was more complex.

Kersten opined: "When you are asking South Africa to withdraw its withdrawal, you are asking it to flip-flop on an important political decision. That is not something that states like to do.

"If they do it, it has to come out by saving face and with a good story as if they have won."

Political point-scoring was an added complication, given that the DA as opposition was challenging government's decision in court.

Potential solutions

Kersten offered three potential solutions that could give SA a way out or forward.

The first was that there had to be clarification from judges on their positions with regards to immunity.

"At the moment they are contradictory."

There should also be some consideration at the ASP of an offer for some kind of conference to be held in South Africa for the ICC's 20th anniversary, which will be celebrated in 2022.

Kersten described this as a diplomatic and political offer.

Lastly, he believed the ASP should stand in unison or commit to refer the situation of immunity of heads of state to the International Court of Justice, particularly in the case of Sudanese President Omar al-Bashir.

"That will take six years and we don't have time. So in the meantime, the court should then say until we receive an advisory opinion clarifying the law with regards to this, we will not refer situations to the United Nations to issue sanctions against states that violate our version of what we think is true here."

Read more on:    icc  |  human rights  |  politics

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