On 19 October 2016, the South African Minister of International Relations and Cooperation signed and submitted an Instrument of Withdrawal to the United Nations (UN) to decisively mark South Africa’s departure from the International Criminal Court (ICC). The Instrument read:
[T]he Republic of South Africa has found that its obligations with respect to the peaceful resolutions of conflicts at times are incompatible with the interpretation given by the International Criminal Court [. . .] this situation requires of the Republic of South Africa to withdraw from the Rome Statute of the International Criminal Court.
South Africa’s departure from the ICC was not motivated by disagreement with the ICC’s judicial mandate in and of itself. To be sure, when South Africa ratified the Rome Statute, it was one of the first ten states to do so. Even more, it had just emerged from the Apartheid, meaning that becoming a state-party to the ICC carried significant weight; it was a momentous demonstration of South Africa’s strengthened commitment towards international criminal law and international human rights law, both of which were salient in the face of a post-Apartheid South Africa. Nelson Mandela’s remarks, made in this context, nod to this: ‘Our own continent has suffered enough horrors emanating from the inhumanity of human beings towards human beings. Who knows, many of these might not have occurred, or at least been minimised, had there been an effectively functioning International Criminal Court.’
Thus, if not for disagreement with the ICC’s judicial mandate, then why, and why now?
The Instrument captures South Africa’s belief that its obligations towards post-conflict peace-making were not shared by the ICC in the same way. However, we might ask here why concerns with, and obligations towards, post-conflict peace-making have any bearings on the ICC and South Africa’s relationship with it, since the ICC is a judicial organisation, not a peace-making one. But this is precisely the point. The ICC, as a judicial organisation, is (only) invested in investigating and prosecuting Crimes against Humanity, Genocide, and War Crimes. And oftentimes, exercising its judicial mandate in this way can have consequences on post-conflict peace-making, since these crimes are likely to have been committed in conflictual settings with prolonged trajectories and volatile possibilities. However, as a state-party to the ICC, South Africa was expected to promote the ICC’s judicial mandate, regardless of the consequences. Thus, South Africa’s departure from the ICC was motivated by the repercussions the ICC’s judicial mandate had on peace-making, which South Africa refused to continue to perpetuate.
But why did South Africa make this decision now? The Instrument was issued in a circumstantial complex involving the ICC, its arrest warrant against Sudanese President Omar al-Bashir, the African Union (AU), and South Africa. The ICC indicted al-Bashir of Genocide, Crimes Against Humanity and War Crimes and issued an arrest warrant for him on account of these charges. However, because al-Bashir was still president when the warrant was issued, he responded by expelling humanitarian aid groups that were attempting to see to the effects his crimes had caused. Worse, the AU, to which South Africa is also party, was concurrently attempting to address his crimes and the situation in Sudan that led to them in the hopes of reinstating peace there. Thus, the AU, as well as African states more generally, were provoked to believe that the ICC’s indictment would halt diplomatic efforts to bring peace to Sudan. This belief has become increasingly salient, given that it is not the first time ICC’s judicial mandate has interfered with peace-making processes. In that regard, the AU, as well as several African states, hold that the ICC oftentimes presents an obstacle to peace.
To complicate this further, since the arrest warrant was issued in 2009, al-Bashir has evaded prosecution by carefully selecting the states he has since visited, and ensuring that they were states non-party to the ICC. When al-Bashir, still president, was invited to South Africa, which was party to the ICC, the ICC expected South Africa to comply, enact the arrest warrant and bring him before The Hague. However, doing so would only further hinder the AU’s peace-making projects. Consequently, South Africa was caught between conceding to its obligations under the Rome Statute of the ICC, which would have implications on peace-making in Sudan, and upholding the AU’s peace-making initiatives in Sudan, which would not bring al-Bashir to justice. In issuing the Instrument, South Africa opted for the latter.
In short, the Instrument was the result of a perceived contention between the ICC’s mandate to administer justice in Sudan and the impediments that this mandate had on the AU’s efforts to re-establish peace there.
However, it would be incorrect and unfair to conclude from this that the ICC has no regard for how its judicial mandate affects post-conflict peace-making at all. Rather, all that can be said is that it is not invested in post-conflict peace-making in the same way as South Africa or the AU. There are two reasons for this. First, it should be appreciated that the ICC is (only) a judicial organ. While the ICC’s judicial activities do sometimes affect post-conflict peace-making, these consequences are borne out of its judicial mandate – the only mandate it is obliged to hold. Its mandate, as set out by the Rome Statute, does not extend to post-conflict peace-making considerations, and is limited in that regard. Whether the ICC should nonetheless be held responsible for these consequences is a different question, but the point is simple – the ICC is only doing what it is meant to be doing, and the non-judicial consequences of what it does are distant (but not detached) from this point. One suggestion here would be to revise the Rome Statute to enable the ICC to consciously account for how its actions could affect post-conflict peace-making to prevent such consequences. However, this is not what its mandate presently entails, and more attention needs to be paid to this observation before the ICC is criticised.
And second, although post-conflict peace-making is beyond the ICC’s judicial mandate, this is also not to say that the ICC does not recognise the relationship between justice and peace. On the contrary, former ICC Chief Prosecutor Luis Moreno Ocampo maintained that, ‘Lasting peace requires justice.’ At least normatively, thus, the ICC has some commitment towards achieving peace, especially since the crimes it prosecutes are characterised as posing a threat to the peace, security and well-being of the world. However, while these commitments are there normatively, they do not always manifest in the most ideal way practically, as evidenced in Sudan.
Nonetheless, the relationship between the ICC, justice and peace must be examined with regards to its possibilities as well as with regards to its limitations. If enacting its judicial mandate and issuing the arrest warrant for al-Bashir has consequences on post-conflict peace-making, then perhaps there may be alternative ways to deliver justice without implicating peace. These alternatives include, for instance, a non-prosecutorial truth commission. Again, the ICC’s ability to do this returns to its mandate, as detailed in the Rome Statute. Arguably, the Rome Statute is sufficiently ambiguous to permit the ICC to defer to these alternatives mechanisms for the delivery of justice. This is provided under Article 53.2(c) when ‘A prosecution is not in the interests of justice.’ While, there is no suggestion of what “the interests of justice” means, the bigger problem with this suggestion is that ICC interventions in Sudan are argued to be in the disinterest of peace. Nonetheless, when levied against the relationship between justice and peace – which the ICC itself recognises – there may be scope for deferral. There is a caveat however; it is unclear whether non-prosecutorial alternatives would be adequate in delivering justice, since a significant part of attaining justice is bringing closure to victims, and is restorative in kind.
All that is clear for now is that the ICC is fundamentally (only) a judicial organ, and is invested in just that. South Africa was captured by this limitation in a difficult circumstantial complex involving itself, the ICC, Sudan and the AU, in which there was a trade-off between justice and peace. Its decision to withdraw from the ICC was the result.