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Leaving the ICC: the consequences

Pieter Van der Merwe of South African law firm VDMA considers the proposal by the country's ruling party that it should leave the International Criminal Court.


It has been widely publicised – both locally and abroad – that South Africa’s leading political party, the African National Congress (ANC), has called for the country’s withdrawal from the International Criminal Court (ICC). The reasons cited include bias, as only African leaders have been prosecuted to date, and a general loss of direction by the ICC. Such a decision would have many implications for South Africa, and indeed the continent as a whole.

The motivation behind any withdrawal from the ICC must surely be related to the international incident in June when South African authorities failed to arrest Sudanese President Omar al-Bashir. The African leader – who faces ICC charges of crimes against humanity and war crimes in Darfur – was allowed to leave South Africa after the African Union Summit, defying the High Court order that was in place. The South African Government may try to use its withdrawal to justify this decision. Regardless, al-Bashir is no longer expected to attend the Africa-China Summit taking place in South Africa in December.

Section 1 of our Constitution affirms that South Africa is a sovereign, democratic state, which is founded, amongst other principles, on the supremacy of the constitution and the rule of law. Our courts are very highly regarded and function very well, immune from any political influence. Our chief justice has taken a very serious stance on this and publically admonished the Government, reminding it that it must abide by court orders like any other citizen.

On a positive note, South Africa’s departure from the ICC may give rise to the formal establishment of an African Court of Justice, which has long been in the pipeline of the African Union. However, if this body is not established quickly or if AU member states do not agree to its jurisdiction, gross human rights violations on the continent could continue without legal impediment.

It is also important to discuss the economic impact of a decision to withdraw from the ICC. Local and international stakeholders may worry that withdrawal would undermine South Africa’s attractiveness as an investment destination. However, I believe that the decision to leave the ICC would not have a significant impact on investment, as this is a political rather than commercial matter.

That being said, I hope that South Africa does not withdraw from the ICC. A decision to withdraw would suggest that our country condones political leaders who violate human rights for their own personal, political or economic gain. It has taken – and will continue to take – years for South Africa to right the wrongs of our past, where one race group was excluded economically, politically and socially.

It would be a travesty if, by virtue of its decision to withdraw from the ICC, the current South African Government were to unwittingly agree to turn a blind eye to similar discriminatory practices and human rights violations taking place on our African continent.

Pieter Van der Merwe is managing director of South African law firm VDMA, part of the Globalaw network. 

Posted by:

Van der Merwe

12 November 2015

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