International justice at a crossroads in Africa

Africa’s current relationship with the ICC will have significant impact on international criminal justice in future.

Date: 2015-07-16

Time: 10:30 to 13:00

Venue: Conference room , ISS Pretoria , Block C , Brooklyn Court , 361 Veale Street , map

In June, President Omar al-Bashir of Sudan attended the African Union (AU) Summit in South Africa. He returned to Sudan, despite an International Criminal Court (ICC) warrant for his arrest. South Africa’s failure to arrest al-Bashir was a stark reminder that tensions between ICC and the AU remain unresolved.

Commentators are divided on how South Africa (SA) should have responded. The country’s position on the ICC is now unclear, given its support for the court’s role in promoting international criminal justice in the past.

With the prospect of South Africa, and possibly other African states, withdrawing from the ICC’s Rome Statute, how do African states plan to prevent impunity for international crimes on the continent? This seminar assessed the legal and political implications for South Africa and Africa’s relationship with the ICC. It also considered the future of international criminal justice on the continent.

The seminar was chaired by Anton du Plessis, Managing Director of the ISS. Speakers were John Jeffery, Deputy Minister of Justice and Constitutional Development in SA and Howard Varney, a Senior Consultant with the International Centre for Transitional Justice and an advocate at the Johannesburg Bar.

Two arrest warrants against al-Bashir were issued by the ICC in 2009 and 2010 for genocide, crimes against humanity and war crimes allegedly committed in Darfur. SA is a state party to the ICC’s Rome Statute, a legally binding treaty that obliges states parties to arrest any fugitive present in its territory and surrender him or her to the ICC for trial. At the same time, al-Bashir was in SA at the invitation of the AU, which means that certain diplomatic and official immunities from criminal justice apply. Key discussion points from the seminar were:

• Regarding SA’s conduct before, during and after the AU summit, the government was criticised for acting inconsistently with regard to its position on the matter. The Deputy Minister clarified that the issue was complex and government does not believe it acted wrongly.
• The SA government is seeking clarity on a variety of legal issues, including the supposed conflict between the Rome Statute, SA’s ICC implementation legislation and the Immunities Act.
• The Deputy Minister disagreed with Varney’s view that events surrounding al-Bashir’s trip to SA have precipitated a constitutional crisis in the country, and that SA could be on its way to becoming a rogue state. This exchange was reported on in The Citizen, the Independent online and the Times. The Deputy Minister argued that the fact that the government has appealed the high court decision shows that it takes the courts seriously.
• Regarding prospects for international criminal justice in SA and Africa more broadly:
  • SA’s position on international justice seems to be evolving, with a noted shift since 2009 when al-Bashir’s arrest warrant was issued.
  • The Deputy Minister’s remarks suggested that SA is unlikely to withdraw from the Rome Statute in the near future. However, he underscored that SA is unhappy with the uneven landscape of international justice and how the ICC is perpetuating this problem.
  • The SA government is considering alternatives to the ICC (not to replace it, but to provide other avenues for justice in Africa). While SA has not ratified the Protocol amending the African Court Protocol, it now supports the new court. There was no indication, however, as to whether SA would ratify the protocol.