In 2008, I was interviewed on SABC’s Motsweding FM by Mr. Goitsemodimo Seleka about the International Criminal Court (ICC) and the Rome Statute. In that interview I decried the selective manner in which the ICC pursued African heads of state and wondered why the African National Congress (ANC) government signed the Rome Statute. As if this was not enough, the ANC government incorporated the Roman Statute into South African law in 2009.

On the other hand, the ANC government has not ratified the Apartheid Convention, ignores the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid in order to avoid prosecuting Apartheid criminals and yet Azanian People’s Liberation Army (APLA) cadres are still languishing in South African jails. They were incarcerated by the Apartheid government and 20 years down the line since the ANC became government, these freedom fighters are still jails.

A few days ago, there was this ICC spectacle involving Sudanese President Omar Al Bashir who had visited South Africa to attend an African Union (AU) summit. An NGO called the Southern African Litigation Centre took the South African government to court to force it to arrest Al Bashir but he was clandestinely spirited out of the country through the WaterKloof airforce base in violation of a court order.

On 24 June 2015, the ANC government was hoisted with its own petard when the South Gauteng High Court found it has violated the law and suggested that the National Prosecuting Authority should consider criminal prosecutions of those responsible. This can be aptly described as an ANC government faux pas on ICC. Be that as it may, I personally do not believe the Sudanese President should have been handed over to the ICC because as some legal scholars have pointed out, his arrest could have violated the nullum crimen sine lege principle. Secondly, it could have infringed on this country’s sovereignty. The Rome Statute cannot and should not be allowed to impinge on our sovereignty.

On 23 June 2015, I was again invited for an interview on Motsweding FM by Mr. Goitsemodimo Seleka on the same topic where I reminded the listeners what I had said in 2008. I also said when I spoke out against the ICC, the ANC government never took heed and now that they have violated their own law, they want to withdraw from the ICC. Withdrawal from the ICC takes effect one year after notification of the depositary and has no effect on prosecution that has already started. In international law, a depositary is a government or organization to which a multilateral treaty is entrusted.

In June 2009, some African states for African states to withdraw en masse from the ICC in protest against allegations that the Court targets Africa, and specifically against the indictment of Al Bashir. In September 2013, Kenya’s National Assembly passed a motion to withdraw from the ICC in protest against the ICC investigation in Kenya. A mass withdrawal from the ICC by African member states in response to the trial of Kenyan authorities was discussed at a special summit of the African Union (AU) in October 2013. The summit concluded that serving heads of state should not be put on trial, and that the Kenyan cases should be deferred. However, the summit did not endorse the proposal for a mass withdrawal due to lack of support for the idea. In November of the same year, the ICC’s Assembly of State Parties responded by agreeing to consider proposed amendments to the Rome Statute to address the AU’s concerns.

The reason I say it was a blunder on the part of the ANC government to be part of the ICC is because they never fathomed the negative impact the ICC could have on the country’s sovereignty. This was not the first time I had raised this issue. I raised the issue of the infringement of our country’s sovereignty in the early 1990’s and mid-1990’s when I warned against signing the free trade agreements. Just a few weeks back, the South African government lifted the suspension on the Africa Growth and Opportunity Act (AGOA) which is going to open up our markets to US poultry products and depress the local industry, leading to job losses. The other problem is that when the ANC government signs these dubious agreements, they do not involve the people.

There are more than twenty states, including the Vatican and three members of the UN Security Council – China, Russia and the United States of America, who did not sign the Rome Statutes. Let us briefly examine some of these countries’ objections.

United States of America: In the US Senate, both Democrats and Republicans said the treaty could not be ratified without a constitutional amendment. US opponents of the ICC argue that the US Constitution in its present form does not allow a cession of judicial authority to anybody other than the Supreme Court. Other objections included arguments that the ICC violates international law, is a political court without appeal, denies fundamental American human rights, denies the authority of the United Nations, and would violate US national sovereignty. In my view, the argument that the ICC deny the authority of the UN is debatable since India sees it differently. The way the UN was established itself is problematic. It is an undemocratic multilateral institution and is more often than not used by Western powers.

China: The People’s Republic of China has opposed the ICC, on the basis that it goes against the sovereignty of nation states, that the principle of complementarity gives the Court the ability to judge a nation’s court system, that war crimes jurisdiction covers internal as well as international conflicts, that the Court’s jurisdiction covers peacetime crimes against humanity, that the inclusion of the crime of aggression weakens the role of the UN Security Council, and that the Prosecutor’s right to initiate prosecutions may open the Court to political influence.

India: The government of India has consistently opposed the ICC. It abstained in the vote for the adoption of the Rome Statute in 1998, saying it objected to the broad definition adopted of crimes against humanity, the rights given to the UN Security Council to refer and delay investigations and bind non-states parties, and the use of nuclear weapons and other weapons of mass destruction not being explicitly criminalized. Other reservations about the Court relate to how the principle of complementarity would be applied to the Indian criminal justice system, the inclusion of war crimes for non-international conflicts, and the power of the Prosecutor to initiate prosecutions.

My question is how did the ANC government fail to see the pitfalls of the ICC as identified by the above mentioned influential countries? Today the ANC government is in a mess, being hauled over the coals by its own courts. This begs the question – is the ANC fit to govern or to represent South Africa or the continent? Judging by the way they voted on UN Security Council Resolution 1973 which toppled Moammar Gaddaffi, the answer must be a resounding NO!

By Sam Ditshego
The writer is a fellow at the Pan Africanist Research Institute (PARI).