South Africa has decided to withdraw from the International Criminal Court following a dispute last year over a visit by Sudanese President Omar al-Bashir, who is wanted by the tribunal for alleged war crimes, crimes against humanity and genocide.
The decision comes after another African nation, Burundi, this week signed legislation to become the first to withdraw from the ICC – raising concerns that states have begun to act on years of threats to leave over what they call the court’s disproportionate targeting of the continent.
A copy of South Africa’s “Instrument of Withdrawal,” dated Wednesday and signed by Foreign Minister Maite Nkoana-Mashabane, states that South Africa “has found that its obligations with respect to the peaceful resolution of conflicts at times are incompatible with the interpretation given by the International Criminal Court of obligations contained in the Rome Statute” which established the court.
Under the Rome Statute, South Africa as a party to the ICC has an obligation to arrest anyone sought by the tribunal.
“Our international legal obligations may hinder our efforts to remain a key player in conflict resolution in Africa,” Justice Minister Michael Masutha said on announcing that the government had notified the United Nations of the withdrawal, which would take effect within one year.
Arresting leaders such as al-Bashir would make it more difficult for South Africa to host peace talks and would also lead to forcing “regime change” in the countries of those leaders, Masutha said at a press conference.
The founding treaty of the ICC “is in conflict and inconsistent” with diplomatic immunity under customary law, the minister said. “Our focus is to ensure that our international law obligations are fully aligned with our local law obligations,” he said.
‘A last resort’
The charges against al-Bashir stem from the bloodshed in Sudan’s western Darfur region, which began in 2003 when rebels took up arms against the government in Khartoum, accusing it of discrimination and neglect. The United Nations says 300,000 people have died in the conflict and 2.7 million have fled their homes.
In June 2015, al-Bashir went to South Africa to attend an African Union summit but the government didn’t arrest him. A provincial court ordered him to remain in the country while judges deliberated on whether he should be arrested on the ICC warrants, but al-Bashir left for Sudan before the court ruled that he should indeed be arrested. The Supreme Court of Appeal later described the government’s failure to arrest al-Bashir as “disgraceful conduct”.
The government said in a statement in late June 2015 that it would consider withdrawing from the International Criminal Court as a “last resort” following the dispute over al-Bashir. It cited “contradictions” in the statute and said South Africa would have found it difficult to arrest al-Bashir because of treaty obligations to the African Union.
The African Union has asked the International Criminal Court to stop proceedings against sitting presidents and has said it will not compel any member states to arrest a leader on behalf of the ICC.
South Africa’s decision to quit the court follows Tuesday’s announcement that Burundi’s President Pierre Nkurunziza signed legislation to make his country the first to withdraw from the ICC, which had said it would investigate recent political violence there.
No country has ever withdrawn from the ICC, which was established to prosecute cases of genocide, war crimes and crimes against humanity.
Burundi’s decision to withdraw follows a bitter dispute with the international community over the human rights situation in the East African country. More than a year of deadly violence has followed Nkurunziza’s controversial decision to pursue a third term, which some have called unconstitutional.
According to South Africa’s document, its withdrawal will take effect one year after U.N. Secretary-General Ban Ki-moon is officially notified.