13/03/2017 15:06 SAST | Updated 15/03/2017 11:43 SAST

Can It Be That The ANC Is Doing an About-Turn About The International Criminal Court?

New ANC policy discussion document makes no mention of ICC withdrawal.

REUTERS/Mohamed Nureldin Abdallah
Supporters welcome Sudan's President Omar al-Bashir during a rally against the International Criminal Court at Khartoum Airport in Sudan, July 30, 2016.

There is a detectable change of tone in the ANC's latest international relations discussion document which talks about the International Criminal Court. Far from the rage and anger of a similar document in 2015, soon after South Africa came under fire for not arresting Sudanese president Omar al-Bashir who came to an African Union summit in Johannesburg, this document doesn't mention withdrawal.

Although it is possible that the ANC might reverse its decision when this matter comes up for discussion at its national policy conference in June, it is unlikely as it has already committed to a parliamentary process to start untangling itself from the court.

The government recently, however, withdrew its notice of intention to withdraw from the court, sent to the United Nations, as the Constitutional Court ruled that the government had not followed the correct procedure. The parliamentary process to redraft the law to allow this withdrawal legally then started.

In the latest document the party still outlines its grievances with the ICC, and said efforts should be "urgently finalised" to expand the mandate of the African Court on Human and People's Rights to deal with issues of impunity, gross violations of human rights and crimes against humanity "without being over-reliant on the international justice system".

The uptake for this court amongst African countries has, however, been so slow and so small that it is not clear when, if ever, the court could fill the gap that an ICC withdrawal would leave.

In the latest discussion document the ANC revisits the history of the adoption of the Rome Statute in 1998, which gave rise to the court. "South Africa actively participated in the negotiations of the important international statute on the understanding that the statute will be applicable to all states on the basis of equity," the document says. "It is regrettable that the power relations in the Rome Statute remained skewed in favour of the powerful Western powers who were given untrammeled power through an unrepresentative structure like the UNSC (United Nations Security Council)," it said.

Only two out of the five permanent members of the UNSC are signatories to the Rome Statute, and they have the power to veto any cases coming before the ICC.

It says "34 African states are signatories to the Rome Statute. However in the recent past they have raised concerns about the manner in which the Rome Statute is implemented without due regard to the continent's efforts to address issues of conflicts and peace, some of which are lasting legacies of colonialism."

The document doesn't mention anything about the African Union's pronouncement encouraging African states to withdraw from the ICC, or anything about South Africa's intention to withdraw.

Many AU member states, like Nigeria and Senegal, did not agree with the withdrawal strategy.

Three African states — South Africa, Gambia and Burundi — last year signaled their intention to quit the ICC. Gambia's President Adama Barrow, elected in December, said earlier this month that the tiny West African nation would remain in the ICC.

Contrast this to the party's 2015 national general council discussion document on international relations, where the party attacked the ICC as "arrogant" (South Africa has to appear before the ICC next month to explain its non-arrest of al-Bashir) .

Still simmering from the al-Bashir debacle a few weeks before, the ANC slammed the ICC, saying it diverted from its mandate and allowed itself to be influenced by powerful non-member states. "We perceive it as tending to act as a proxy instrument for these states, which see no need to subject them to its discipline, to persecute African leaders and effect regime change on the continent. It is being used as a court against Africa."

Six retired Constitutional Court judges have already submitted papers to parliament saying South Africa should remain in the ICC and rather push for it to be reformed. Speaking on behalf of the justices, Justice Zak Yacoob said even if South Africa went through with its decision to withdraw now, the jurists would continue lobbying government and the ANC to re-join.