This is despite Minister of Justice and Correctional Services, Michael Masutha, arguing that it is contradictory for SA to arrest leaders wanted by the International Criminal Court (ICC), while they enjoy diplomatic immunity under customary international law and South Africa actively playing a role in fostering stability, peace and dialogue in their countries.
Professor Malte Brosig, from The University of Witwatersrand Department of International Relations, says government is arguing that there can only be justice or peace, yet one cannot work without the other.
“The decision was short-sighted and there are a lot of implications in the long run,” he says. “Under Nelson Mandela South Africa developed a reputation as a rights- inspired nation. SA has played a large role when it comes to peacekeeping on the continent, now that reputation has been jeopardised.”
Instead, Neuma Grobbelaar, Director of Research at the South African Institute of International Affairs, says the decision was made to protect errant leaders and there is uncertainty which instrument South Africa will draw from outside of the ICC, to deal with leaders.
“It is unclear that the proposed African Court on Human and People’s Rights, given its severe funding constraints and the protection of sitting heads of state will be able to step into this lacuna (gap),” she says.
“Taken in conjunction with SADC Tribunal decision in 2014 to remove its mandate on Human Rights, the latest step suggests that South Africa is moving in the direction of protecting leaders, not people. This is a significant departure from its purported values of protecting the human rights of Africa’s citizens.”
Faith Mabera, researcher at the Institute for Global Dialogue says it’s more than just a legal issue.
“It also speaks to South Africa wanting to show solidarity with other African states on the matter of non-cooperation with the ICC, a campaign spearheaded by Kenya at the AU which lobbied extensively for an en masse withdrawal of African states from the Rome Statute,” she says.
There has been criticism that the ICC is biased towards African countries, however, Mbere says, this is ultimately linked to the politics of perception and power in the United Nations Security Council that has referred African cases but hasn’t referred any non-African cases such as Iraq, Palestine and Syria.
“It is important to remember, that statistically and empirically-speaking, the fact that 34 African states are party to the Rome Statute and given the preponderance of mass atrocities crimes on the continent occurring in ongoing conflicts, there’s higher chances that the majority of cases will come from Africa,” she says. “The people who complain about the bias tend to be African elites and not victims of the crimes.”
In 2016, the South African government lamented that it could not host the 27th African Union Summit, which took place in Rwanda, because it was obligated by the Rome Statute to arrest Sudanese president Omar Al-Bashir should he be on South African soil.
The South African government had argued that it should be exempt of its obligations should it host the AU Summit, however, the ICC was unwilling to relent.
Mbere says withdrawing from the ICC has closed the door to any negotiation of reasonable exemptions with the ICC.