The awaited BRICS Summit 2023 again caught South Africa (hereinafter, ‘SA’) between a rock and a hard place, much like 2015’s African Union Summit regarding its stance ‘in’ and ‘about’ the International Criminal Court (hereinafter, ‘ICC’). Within hours of President Cyril Ramaphosa briefing their withdrawal from ICC, his office issued a statement saying, “[t]he presidency wishes to clarify that South Africa remains a signatory (to the ICC).”
Certainly, it was a blessing in disguise for SA when President Vladimir Putin declared his physical absence from the BRICS Summit. Putin is subjected to an arrest warrant issued by the ICC for the unlawful deportation of children from occupied areas of Ukraine. As a signatory to the Rome Statute (the founding document of ‘ICC’, hereinafter, ‘the Statute’), SA was bound to arrest Putin on arrival at Johansenberg to execute the arrest warrant. However, the close ties between Kremlin and Pretoria saved the latter from a déjà vu moment, where they almost retracted from the Court following the failure to arrest then-incumbent Sudanese President Omar Al Bashir.
In the following segments of this article, first, the authors critically analyzed the possible ramifications of SA’s withdrawal followed by addressing whether at any given point the proposed African Court of Justice and Human Rights (hereinafter, ‘ACJHR’) can be a substitute for ICC. Furthermore, the authors denote the possibility of an African exodus from ICC amidst the allegations of investigative bias towards this continent.
The One-Year Loop
State withdrawals from the Statute follow Article 42(2) of the Vienna Convention on the Law of Treaties (VCLT) which clarifies, “[t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty…..”. This means the notification of withdrawal shall be implemented by Article 127 of the Statute itself which promulgates the one-year notification period. Additionally, within this period of one year, State parties are obliged to cooperate with criminal investigations and proceedings that were commenced before the withdrawal becomes effective. Thus, even if SA decides to quit ICC today with the view of securing its diplomatic ties, it would still be bound for 12 months to cooperate in executing arrest warrants issued by the Court.
A Constitutional Crisis on Standby
By all means, the vicious cycle of legal complexities with SA’s intention of withdrawal ushers in with Section 231 of their Constitution. This provision requires parliamentary approval to withdraw from any international treaty that has been ratified and further domesticated in South African legislation. Remarkably, after the Bashir arrest saga, the South African High Court in the Democratic Alliance case (2017) clearly embraced this provision to its full potential and declared withdrawal from ICC without parliamentary approval as ‘unconstitutional’. It is important to note that, the Court did not comment on the fact whether South Africa needs to be a member of ICC, instead the Court passed the dictum in paragraph 57, “[t]he national executive‘s decision to deliver the notice of withdrawal without obtaining prior parliamentary approval violated s 231(2) of the Constitution, and breached the separation of powers doctrine enshrined in that section.”
Similar issues have been raised in the common law jurisdiction as well, such as in the Miller Brexit Judgment where the United Kingdom Supreme Court ruled that the British Government (Executive) is not authorized to withdraw from the European Union by a formal notification without an Act of Parliament. Thus, from a bird’s eye view, the brazen attitude of SA about going back and forth with withdrawal strategy challenges their own judiciary at the very least.
Status Quo of the Implementation Act
The national and regional ramifications vis-à-vis the domestication of the Statute shall be discussed seriatim in this part. First of all, given the fact that SA incorporated the Statute in two stages, first at the stage of ratification and later by the domestication of the ‘Implementation Act, 2002’, it has bred further legal complexities to withdraw from ICC.
Thus, this legislation would become pointless if SA decides to leave this Court. As an effort towards repealing this Act, the International Crimes Bill was introduced by the African National Congress (ANC) more than 5 years ago, which was eventually withdrawn on 10 March 2023. This ignites significant confusion over the status quo of the ‘Implementation Act’ in the national legislation of SA while they again attempt to withdraw from the Court.
Secondly, national courts may only exercise universal jurisdiction to prosecute one or more grave crimes in international law by incorporating it into domestic legislation. Thus if at any point in time, such the Implementation Act does get repealed, SA would find themselves no longer able to exercise universal jurisdiction over those international crimes. The South African Judiciary has embraced this Act in groundbreaking jurisprudence, such as the National Commissioner case (also known as the “Torture Docket Case”) and the Minister of Justice and Constitutional Development case. In the milestone judgment of the Torture Docket Case, the Constitutional Court of SA declared in paragraph 47, “[t]he exercise of universal jurisdiction, for purposes of the investigation of an international crime committed outside our territory, may occur in the absence of a suspect without offending our Constitution or international law.” However, with necessary amendments, it may be possible to abstract SA’s international treaty obligations and jurisdictional issues, to retain each fit to its own place.
The ‘ACJHR vs. ICC’ Battle
In all optimism, if SA ever succeeds with its withdrawal from ICC after overcoming the above-mentioned legal entanglements, the next burning issue is to address possible alternatives for ICC. At this point, the accelerating efforts of AU member States towards strengthening the jurisdiction of ACJHR under the (yet to be operative) Malabo Protocol (hereinafter, ‘the Protocol’) to prosecute international crimes, more as an alternative to ICC, is not an esoteric knowledge to any. However, there are significant impediments that Africa, as a continent, has to consider before addressing ACJHR as a viable alternative to ICC.
How many crimes are too many crimes?
In pursuant to Article 28A of the Protocol, the proposed ACJHR would exercise jurisdiction over 14 crimes with the potential of new ones to be added, making the capacity of this Court to mandate effective judgments questionable. Notably, ACJHR intends to prosecute beyond the core international crimes reflected in ICC’s Statute and also criminalizes transnational crimes such as money laundering, piracy, terrorism, etc. as narrated in Articles 28E-28Lbis of the Protocol. These ambitious radical inclusions comprising such grey areas of international crimes may overshadow the effective justice of core crimes falling under the jurisdiction of international criminal law. It is a matter of great concern how the African Union (hereinafter ‘AU’) members are proposing to substitute ACJHR with ICC bearing such a vast lack of resources, expertise, and capacity to prosecute a diverse range of crimes. A well-established African Court exercising jurisdiction over core international crimes (coupled with the proposed transnational crimes) is a pre-requisite to any effort to depart from ICC, otherwise, it may only be regarded as an embryonic thought.
Lack of manpower and financial resources
To start at the point-blank stage, the sheer meager of the ‘Judges to Crimes’ ratio in ACJHR itself portrays the deficits more clearly, as to adjudicate 4 core crimes, ICC is composed of 18 judges, whereas ACJHR consists of 16 Judges to look over 14 different crimes. Alongside lack of manpower, as more than half of AU member States are part of ICC, ACJHR may also face challenges in funding resources. Being the parent body of ACJHR, the AU mainly relies on two sources of funding, namely the contribution from member States and international donors. The heavy reliance of AU on international donors inevitably puts a question mark on how they are thinking of financing a court like ACJHR considering their failure to fulfill financial obligations in the Hissène Habré Trial held in Senegal to establish the Extraordinary African Chamber which held significant importance for the continent itself.
The outrageous ‘Immunity Clause’
One of the significant reasons for not mulling over ACJHR as closely similar to ICC still remains hidden in Article 46Abis of the Protocol, namely in the ‘immunity clause’, which would depose dire consequences by protecting serving ‘heads of State’ from prosecution who often abuse their position to commit crimes under international law. The disregard of acknowledging a principle extending immunity to sitting ‘heads of State’ for committing atrocious crimes has been further vindicated by the ‘UN Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity’ in Principle 27 (c) affirming, “[t]he official status of the perpetrator of a crime under international law – even if acting as head of State or Government – does not exempt him or her from criminal or other responsibility….”. Thus, on practical assessment, a Court exercising such an immunity clause is seen as inevitably leading the trip of de facto impunity, rather than ensuring justice to the victims of most egregious crimes.
An African Exodus
One may not be at fault for predicting that SA’s withdrawal from ICC would surely weaken its fundamentals and cause a deliberate ‘domino effect’ in the African continent. An attempt of en masse departure of African States flamed up with Burundi’s retraction from ICC which led other AU members to question the credibility of this Court adduced by the neo-colonialistic approach of case selectivity. This withdrawal not only pushed countries like SA to question the founding principles of ICC to fight against impunity for atrocious crimes establishing the rule of law, but also countries like Kenya, Namibia, Rwanda, and Uganda voiced their criticisms against this institution for their ‘double standard’ approach towards this continent.
At the outset, it is important to note that, ICC is supposed to be regarded as a last resort when national courts are unable to prosecute or by invitation of the countries or by United Nations Security Council (hereinafter, ‘UNSC’) referrals. Interestingly, in 2003 through the Kony et al. case, Uganda became the first country to ‘self-refer’ to the ICC prosecutor to open an investigation against Lord Resistance Army Leader Joseph Kony and others. The following years only saw the long-standing trail of African cases against rebel group leaders referred by their respective Governments. Further carrying little weight to the anti-African biases, ICC investigations have also been opened in Afghanistan, Georgia, Bangladesh/Myanmar, Palestine, the Philippines, and Ukraine.
Thus, the allegation against the ICC for their perceived focus on African crimes as a reason for their withdrawal from the Court holds no substantial ground. It is well argued that the anti-ICC rhetoric may have started from the long pursuance of Bashir and Kenyatta which transmitted a clear signal to African nations that even the ruling elites can be indicted, even if they hold a presidential power. Allan Ngari, a senior researcher at South Africa’s Institute for Security Studies refers to this as “[t]he elephant in the room: immunity for sitting heads of states.”
All in all, the news of one-year anniversary of Moscow’s invasion of Ukraine was accorded by South Africa’s joint naval drills with their allies Russia and China which clearly sets South Africa’s priorities in place. And, if that means not cooperating with the ICC obligations for executing an arrest warrant against the head of the States accused of international crimes, they might do that as well, not once, but twice.
Therefore, the conflict between South Africa and ICC remains at the heart of the ‘immunity clause’ which has inevitably emerged as an ostentatious tool of the new world order. Now, only time may unleash whether the Putin-Bashir episode will be replayed while another head of State indicted of international crimes under ICC visits South Africa again. Additionally, with the structural and financial incapabilities of ACJHR, how close it may ensure justice for the gravest international crimes bordering on ICC is surely up for debate.
Barrister Tapas Baul is a Prosecutor at the International Crimes Tribunal-Bangladesh. He is an Adjunct Faculty of International Criminal Law, Clinical Legal Education, and Penal Laws at Jahangirnagar University and Bangladesh Open University. Jannatul Ferdous Jannat is a Research Assistant at the International Crimes Tribunal-Bangladesh.
Image Credits: Eva Alexander/REUTERS
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