South Africa's early support for the idea of a permanent international criminal court is well known. In particular, its influence at Rome in 1998 where the International Criminal Court's (ICC) statute was drafted has been chronicled widely and admired deservedly. Events in recent months have tested South Africa's commitment to international criminal justice in general, and the ICC in particular. Those who value justice and the rule of law will therefore be encouraged by the country's recent reaffirmation of support for the ICC.
On 17 July 1998 South Africa signed and ratified the ICC Statute to become the 23rd State Party. It also gave domestic effect to the Statute by passing the Implementation of the Rome Statute of the International Criminal Court Act 27 2002 ("ICC Act"). The passing of the ICC Act was momentous: prior to the ICC Act, South Africa had no municipal legislation on the subject of war crimes or crimes against humanity, and no domestic prosecutions of international crimes had taken place in the country. Through its support for the ICC South Africa set an example that was soon followed by a number of its peers. Africa seemed truly committed to ending impunity for grave crimes.
Not so fast. The strong stand in support of the ICC that characterized (South) Africa's earlier position on international criminal justice is less evident today. This change in position tracks a broader "push-back" against the ICC on the continent. The reasons for Africa's apparent resistance to the ICC have been well documented.
* First, there is the suggestion that the ICC is a hegemonic tool of western powers.
* Second, and apparently related to the first allegation, is the argument that the ICC is an institution which is targeting or discriminating against Africa.
* Third, there is the suggestion that the ICC's focus only on Africa is undermining rather than assisting African efforts to solve its problems, especially peace efforts or conflict resolution processes. The ICC's hitherto exclusive African focus has generated within the AU a call for the empowerment of the African Court on Human and Peoples' Rights to deal with serious crimes of international concern, as an apparent alternative to the ICC.
* Fourth, because the Security Council (SC) to date has chosen not to accede to the AU's request for a deferral of the Sudan investigation, the AU has complained that the SC has ignored African calls for peace to be respected over justice.
* Fifth, some object to the fact that the SC (with its skewed institutional power) while entitled to send cases to the ICC, has made itself guilty of a double-standard since it has done so in respect of Sudan but has not done so in relation to, for instance, Gaza.
* Sixth is the objection that the Court has decided to proceed against a sitting head of state of a country that is not party to the Rome Statute.
It is not completely clear how South Africa positions itself in respect of these complaints. Reports emerged that during May 2009 South Africa had invited President al-Bashir - by then wanted by the ICC - to President Zuma's inauguration. If he were to arrive the country faced an embarrassing situation that threatened to undermine the jubilation of inauguration day. On the eve of the inauguration the Government clarified that although the Sudanese government was invited, President al-Bashir was not. Al-Bashir chose not to visit South Africa at that time.
Then July was dominated by the news that South Africa joined ranks with others at an AU meeting in Sirte, Libya, to support a 3 July AU resolution (apparently driven by President Gaddafi) calling on its members to defy the international arrest warrant issued by the ICC for al-Bashir. But just shy of a month before that South Africa's Justice Minister at a different AU meeting in Addis Ababa had joined with other African states to affirm a deep commitment to the Court.
The Sirte resolution of the AU on 3 July - stressing that Member States would not cooperate in the arrest and surrender of African indicted personalities - was quickly condemned as a betrayal of Africa's commitment to end impunity for human rights atrocities, and an international treaty violation. Only Botswana publicly distanced itself from the AU move.
Because of its support for the resolution South Africa was quickly singled out for severe criticism both at home and abroad. One example of the criticism is a statement of 15 July 2009 signed by several South African civil society organisations and many concerned individuals calling upon President Jacob Zuma to honour South Africa's treaty obligations by cooperating with the ICC in relation to the warrant of arrest issued for President al-Bashir. The General Council of the Bar issued its own strongly worded statement on the same day calling on South Africa to honour its legal and constitutional obligations in relation to the ICC.
After this directed criticism the Government issued a response which purported to clarify that it was committed to its legal obligations in relation to the possible arrest of President al-Bashir. On 31 July 2009 the Department of International Relations and Cooperation issued a press statement saying that it would honour its legal obligations to the Court, including cooperation in respect of the arrest warrant for al-Bashir. It also clarified South Africa's position on immunities for heads of state, explaining that official capacity (even in relation to sitting heads of state) provides no exemption from criminal responsibility.
Remarkably, at that press conference it was disclosed that an international arrest warrant for al-Bashir "has been received" (presumably from the ICC) and "endorsed by a [South African] magistrate". South Africa was clear: al-Bashir would be arrested if he came to South Africa.
Whether the public position adopted by the Government at this 31 July 2009 media briefing was a reversal of the position it had adopted in supporting the 3 July 2009 AU decision remains unclear. It is nonetheless a praise-worthy clarification of South Africa's commitment to its treaty and domestic legal obligations. South Africa, like Botswana and Chad before it, will no doubt come under increasing regional pressure as a result of its decision to support the ICC. More African countries, with the support of civil society groups, need to reaffirm their commitment to justice and the rule of law. Without a clear, collective and principled African voice on these issues, the valuable progress of the past decade may be significantly diminished. This would not be in Africa's interests. And it would be a sad blow for the victims of grave international crimes.
Written by: Max du Plessis, Senior Research Associate, International Crime in Africa Programme, ISS