Working Papers

Governance Implications of South Africa’s Withdrawal from the International Criminal Court

Governance Implications of South Africa’s Withdrawal from the International Criminal Court

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27 Oct 2016

Author(s): Gerhard Erasmus

Media reports described South Africa’s recently announced withdrawal from the International Criminal Court (ICC) as showing “startling disregard for justice from a country long seen as a global leader.” Amnesty International said South Africa was “betraying millions of victims of the gravest human rights violations and undermining the international justice system”.

The political fallout of this decision can be huge; South Africa played a dominant role during the 1990s in the setting up of the ICC. Other African nations may follow suit, which will undermine the effectiveness of what has become a unique forum to deal with international crimes and grave human rights violations. Burundi already said it would withdraw, and Namibia and Kenya have raised similar plans. The ICC has been criticized as targeting African leaders, despite issues of admissibility of cases being governed by the Rome Statute. As a rule the Court does not select its own cases.

The South African withdrawal announcement came unexpectedly. There was no explanation on how the matter was decided or why it was urgent. The announcement was accompanied by a statement that the Government is now also abandoning its appeal against the 2015 Judgment by the High Court of South Africa which found that, as a question of applicable law, the Government was compelled to arrest President Bashir pending a formal request for his surrender from the International Criminal Court for war crimes, crimes against humanity and genocide. That judgment also found that the conduct of the Government was inconsistent with the Constitution of the Republic of South Africa and invalid.

The reasons offered by the South African Government as to why it is withdrawing from the ICC are discussed here, together with some of the domestic and International legal principles which now come into play. There are broader governance issues and they will also be mentioned.

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