States of Justice Symposium: International Justice as Political Strategy

[Dr Sithembile Mbete is a Senior Lecturer at the Department of Political Science, University of Pretoria.]

In his book States of Justice: The Politics of the International Criminal Court, Oumar Ba masterfully engages the politics of international justice by examining how weaker states have used the International Criminal Court (ICC) to advance their security and political interests in a manner that belies the ‘justice cascade’ argument made in the international law and international relations literature. In an international system in which states remain the main actors, pursuing justice for atrocity crimes is a daunting prospect that must compete with national interests and the political calculations of leaders. What makes this book exciting is the author’s subversion of the typical view of the power dynamics between the ICC and states. Whereas, much of the IR literature focuses on the manipulation of the ICC by great powers, Ba focuses on the agency of weaker states and takes them seriously as self-interested participants in the international justice system. This distinguishes the book from other critical accounts of international justice that tend to interpret African states as victims of a rigged international system.

As an IR scholar, I appreciate that the book departs from the premise that international justice is ‘inherently and inextricably political’. By taking power seriously, Ba makes a significant contribution to our understanding of the motivations of states in their interactions with the ICC. He advances the well-rehearsed theoretical arguments on topics including complementarity, heads-of-state immunity and state compliance with international law by using empirical evidence from a plethora of case studies to test how the theory works in practice.

Reading Ba’s arguments from a South African perspective is illuminating because he has developed a theoretical framework for making sense of the apparently contradictory tendencies in the way the country has engaged the ICC. South Africa is one of the brief case studies discussed in chapter 7 as one of the states that has initiated proceedings to withdraw from the Rome Statute. Ba describes South Africa’s decision as ‘the only outlier’ among cases and explains the decision in terms of the country’s role as a regional leader that wants to protect the African Union (AU). I would argue that SA’s decision can be understood more fully using two of the themes that make up the book’s analytical framework: the limits of state cooperation with international courts and the use of international courts in domestic political conflict.

South Africa played an influential role in the discussions on establishing the International Criminal Court (ICC) in 1998 (Fritz in HSF 2009). South Africa was one of the first signatories to the Rome Statute, which it domesticated in its legal system through The Implementation of the Rome Statute of the International Criminal Court Act of 2002 (Du Plessis 2008). Pretoria contributed several key ideas to the text of the Rome Statute and it resisted US pressure to sign a bilateral non-surrender agreement that would prevent Pretoria from surrendering US citizens or employees to the ICC, incurring significant costs in the form of lost US military aid funding (Grant and Hamilton 2016: 171-2). It’s important to note that South Africa’s support of the Rome State was paradoxical. The country’s approach to its own post-conflict transition from apartheid was based on privileging peace over justice. In fact, while South Africa was domesticating the Rome Statute, its President Thabo Mbeki was pressurising the National Prosecuting Authority (NPA) not to investigate cases of apartheid crimes that were brought forward by the Truth and Reconciliation Commission (TRC). Mbeki’s support of the ICC was instrumental and part of his African Renaissance vision of Africans taking control of their own governance. By surrendering some sovereignty to this new international court that they were involved in creating, African governments could secure greater autonomy from their former colonial powers. This reasoning is one of the reasons South Africa was strongly opposed to the inclusion of Article 13 allowing UNSC referrals to the ICC.

Unsurprisingly the fractures in South Africa’s relationship with the ICC emerged during the country’s first term in the UNSC, 2007 -2008, while the Court was initiating arrest warrants against Omar al-Bashir and other Sudanese officials. SA’s permanent representative at the UNSC, Dumisani Kumalo, characterized the debate on Bashir’s indictment as how to balance ‘judicial accountability’ to end impunity for international crimes and ‘the realities of bringing an end to conflict through a sensitive peace process’. Kumalo urged the UNSC to accept the AU’s request for an Article 16 deferral ‘allow the Council to strike a balance between the important principles of peace and justice, should the situation on the ground demand it’.

The referral of Sudan to the ICC in 2005 and subsequent indictment of Al-Bashir placed South Africa’s commitment to fighting impunity directly in conflict with its commitment to fighting international power imbalances. South African policymakers thought they could use the country’s moral authority and example of balancing peace and justice at the end of apartheid to take the lead in the UNSC’s approach to international crimes in Sudan. However, they quickly realised their weakness within the quintessential arena of power that is the UNSC.

During the country’s second term in the UNSC, 2011-2012, SA voted for resolution 1970 referring Libya to the ICC. All African states on the UNSC and the representative of the League of Arab States, Lebanon, sponsored the resolution indicating its wide acceptance and legitimacy among states in the region. The support of African states for the resolution is remarkable given the AU’s 2009 decision not to enforce the arrest warrant against Sudanese President Al-Bashir. Curiously, Ba does not engage with this contradiction in much detail, which is a missed opportunity to apply his analysis to inter-African politics. The African members of the UNSC became more critical of the UNSC referral as the fallout from NATO’s military intervention became more apparent. South Africa’s Deputy Ambassador to the Council  urged the Prosecutor to focus on crimes committed on all sides ‘to protect the Court’s integrity and to ensure that all who were caught in the crossfire of the conflict are protected’ and criticised the exemption of non-member states of the ICC, except Libyans, from investigation in terms of res 1970.

In response to South Africa’s experiences in the UNSC, the country’s ruling African National Congress (ANC) resolved in its 2012 conference that:

Much as the ANC does not condone impunity, authoritarian and violent regimes, it is concerned about the perception of selective prosecution of Africans and urges the ICC to also pursue cases of impunity elsewhere, while engaging in serious dialogue with the AU and African countries in order to review their relationship.

The concern about the ICC evolved to outright disdain by 2015 when South Africa failed to arrest then Sudanese President Omar al-Bashir when he attended an African Union summit in Johannesburg. Both domestic courts and the Pre-Trial Chamber I of the ICC ruled that South Africa violated its responsibilities by not arresting Bashir. Significantly the domestic courts based their judgements on the domestication of the Rome Statute in South African law. In response to these judgements, the government announced its intention to withdraw from the ICC. The Bashir case happened when then President Jacob Zuma was facing serious allegations of corruption and maladministration. In many ways membership of the ICC became a proxy for government’s commitment to accountability. The media and civil society interpreted government’s withdrawal as yet another sign of Zuma’s impunity. In December 2017 the 54^th national conference of the ANC voted to withdraw South Africa from the ICC. Current President Cyril Ramaphosa was elected ANC president at this conference. At a recent meeting of the ANC’s national executive committee, President Ramaphosa argued that the party needed to consider ‘a strategic retreat’ from its position on leaving the ICC because other African countries had abandoned their withdrawal efforts. However the President’s opponents within the ANC have doubled down on the party’s resolution to withdraw from the ICC making several public statements contradicting the president. Whether South Africa remains a party to the Rome Statute will have far less to do with the principle of international justice than domestic political dynamics.

As the discussion above illustrates, States of Justice provides innovative tools of analysis to understand the behaviour of states in relation to the ICC. The theme of state cooperation with international courts and the politics of the ICC/UNSC relationship sheds light on the international power politics that are a constraint and opportunity for weaker states to assert themselves in an unequal world order. For me, the use of international courts in domestic political conflicts is a critical insight for understanding South Africa’s engagement with the ICC. Ba demonstrates that the state is still the critical actor on the world stage. More significantly, peace in Africa cannot be achieved through international peace and security and international justice interventions. We need to take seriously the domestic politics and societal conflicts that underly the continent’s intractable conflicts. The great lesson of this book is that the sources of international justice are irrevocably local.