South Africa to "unsign" ICC charter

2015-10-12 17:50

Supremacy "holy-cow culture" is strangling global political process. The decision by South Africa's ruling African National Congress (ANC) second highest policy decision making body the National General Council (NGC) over the International Criminal Court (ICC) was forced unto the ANC by the construct. The NGC takes leaf from its senior forum the National Elective Conference resolution of 2012 on the matter.

At times the governing party of South Africa, the ANC has found itself too idealist only to turn back to its default character of pragmatism. South Africa's membership to the International Criminal Court and the Rome Statutes which formed the court became untenable when the Unites States in particular reneged in last minute to assent to the Charter. Nonetheless, South Africa continued its membership instead relying on periodic review processes that sought to amend and update the manner in which the court functions. Non of the South African government's proposals to make the court more representative and responsive to the continents multilateral African Union (AU) were adopted.

As the US holds the position of being the global superpower both in terms of wealth and military power, the world at large would have been better served had the US showed better leadership on the issue of the ICC instead the ICC has been seen by many as a further instrument or tool by the US to further its narrow global hegemonic political interests and to even effect its policy on regime changes through the ICC itself. This made this court unequal and inequitable in every sense.

Although the US after much struggle did eventually signed up to the ICC days before the December 2000 deadline, it since became clearer why it eventually signed then - it wanted to ensure it would be a State Party that could participate in decision-making about how the Court works. It achieved this by getting the UN Security Council (UNSC) to have power over the court. The UNSC is a political organ yet it has a say on who can or can not be prosecuted by the court which is suppose to be neutral in form and practice.

When President George W Bush was about to launch wars in Iraq and Afghanistan his legal counsel urged him to first withdraw from the ICC which he did with speed coupled with declaring the UN irrelevant to America's national interests.

* By May 2002, the Bush Administration “withdrawn” from the Rome Statute and threatened to use military force if US nationals were held at The Hague.

* In building up the "coalition of the willing" - Bush devised a policy of "either with us or against us" - even direct pleas from Nelson Mandela to Bush not to pursue this strategy fell on deaf ears. The US continued to pressure its coalition parties to sign agreements not to surrender US citizens to The Hague.

Such events and many others including that three of the UN Security Council permanent members are not ICC Party States made the continued membership to the ICC by an ANC led government oxymoronic.

There is a subculture in global politics that some are equal but not equal to others, a holy-cow culture where the US and other human rights violators are untouchable yet the African nations are subjected to the rule by the "holy-cows".

At some point, South Africa's ruling party had to ask itself how best to lead Africa on the issue of the ICC as African states enmasse had registered strong objections over several matters that made the court appear to be solely focused on Africa, making it an African matters court in Europe by nations who do not even subject themselves to the same court. A new form of grand supremacy and colonization of a special kind. African justice system and structure is seen as having been colonized in the 21 century thus the ICC failed to transcend from master-subject paradigm irking sovereign conscious nations who know very well what colonialization looks like.

With South Africa's former presidents Nelson Mandela and Thabo Mbeki having bitterly argued that the court should change and transform it became a no surprise when the ANC NGC instructed its party in government to start processes to procedurally withdraw from the ICC. In explaining the matter further, current president Jacob Zuma explained that South Africa's opposition in the manner in which the court has conducted itself - as dangerous to nation building during crises and not conducive to peace building as in the case of Sudanese president al Bashir whose arrest warrant was issued on the eve of a peace deal Bashir was instrumental in.

In understanding Zuma's argument we must place the ICC in the South African context where human rights violators, the apartheid regime, charged with crimes against humanity by the UN, were only asked to face the Truth and Reconciliation Commission and not criminal courts as this was seen as the best way for the country to move forward and heal. We must then imagine an ICC that issues arrest warrants for ex president FW de Klerk, his cabinet and entire apartheid security services.

The ruling ANC being a sympathetic to the Palestinian cause also made the matter easier to conclude as Israel, according to Zuma "continuously breaks international law and human rights backed by US UNSC veto blocking action against her".

The ANC being an anti-supremacy, anti-racism, anti-uni-polar formation, it should not have been a surprise to see this decision which will embolden most nations to follow suit especially as South Africa is current chair of the 134 nation grouping, the G77+China which seeks to form a block of non-aligned progressive nations in the 195 UN nations.

The ANC's answer to the ICC is an African Court that should be strengthened. The NGC was at pains to emphasize the notion - African problems need African solutions - "nothing about us without us". The finer details of the NGC resolution include that all African matters before the ICC should, without exception be referred to the African Court. The ANC government was thus instructed by its "grassroots stakeholders" to stop the kick-the-can paradigm over the ICC issues and "unsign" from it.

The Party States to the Rome Statutes will be meeting in a regular meeting this November and will have to discuss the issues the AU has already put forward particularly that of being against any sanctions targeting sitting heads of states, a move that failed as ICC continued with Kenya's President Kenyatta charges although the charges were later dropped. South Africa has an item on the agenda dealing with her request for review of diplomatic immunity issues for Heads of States. South Africa will participate in the November meeting.

Africa has 34 ICC members with 20 other nations refusing to rectify and becoming a part of the Rome Statute. The African nations, reasonably frustrated, continue to ask reasonable questions: why is the court solely focused on Africa? why is the AU ignored by the court? why is the court blind to the notion that peace is human right and justice must recognize this?

The question should not be why us South Africa "unsigning" but why the ICC allowed itself to be a global political tool.

The next showdown to come will be the G77+China demanding the immediate transformation of the UNSC itself. It remains tragic that superpowers see nothing wrong with a UNSC that has no southern continental area representation on it. That alone is against the human rights of over 4 billion global population. An untransformed non representative UNSC means a non-responsive ICC.

Bongani Mbindwane

Mbindwane was an invited observer to the 4th ANC NGC held in Midrand, Johannesburg South Africa.

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