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South Africa to withdraw from International Criminal Court

South African President Jacob Zuma waits for a photo opp., at the 25th African Union Summit in Sandton, Johannesburg, on June 14, 2015. Sudanese President Omar al-Bashir joined a group photograph of leaders at the African Union summit in Johannesburg on Sunday despite the International Criminal Court calling for him to be arrested at the event.

MUJAHID SAFODIEN/AFP/Getty Images

In a major blow to the International Criminal Court, the South African government has given formal notice of its intention to withdraw from the beleaguered court.

South Africa was one of the strongest early supporters of the international court in 2002, but it has now become the second African country to announce that it is quitting the court's founding treaty, a move that could encourage other nations to follow in a domino effect.

Burundi was the first to announce its plan to withdraw, in a presidential decree earlier this week. Others, including Kenya, could adopt the same tactic.

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The withdrawals will trigger a crisis in credibility for the court. Many African countries have accused it of unfairly targeting Africans, noting that only Africans have been convicted in the trials in The Hague so far. But until this week, none of the unhappy African governments have formally decided to abandon the court.

Supporters of the court have denied that it is biased. They have noted that most of the African prosecutions were referred to the international court by African governments themselves.

The African backlash against the court became more furious when several African political leaders – including those of Sudan and Kenya – were indicted by the court. Several African countries – including South Africa – have refused to arrest Sudan president Omar al-Bashir when he travelled to their countries, despite his ICC arrest warrant for war crimes and despite the legal obligation of court members to arrest him.

In its formal notice of withdrawal, leaked to local media on Thursday night, South Africa's foreign minister informed the United Nations Secretary-General that her country would withdraw from the court's founding treaty, the Rome Statute, on the earliest possible date, which is a year after the UN receives the notice.

In its one-page notice of withdrawal, South Africa claims that the international court is pitting justice against peace, and it argues that the court's interpretation of its legal duties is sometimes "incompatible" with the "peaceful resolution of conflicts."

But analysts note that South Africa is facing a potential court defeat of its own. Civil society groups have already hauled the government to court for its failure to arrest Mr. al-Bashir when he visited South Africa last year. The courts, including the Supreme Court of Appeal, have ruled that the government acted unlawfully by failing to arrest the Sudanese president, since the ICC's founding treaty has been adopted into South Africa's own domestic laws. The government's appeal to the highest court, the Constitutional Court, is due to be heard next month.

As an early supporter of the international court, and as a country that once held the moral high ground on justice issues because of its anti-apartheid struggle, South Africa's withdrawal could be the biggest setback for the court so far. The court is already under criticism for obtaining only four convictions in its history, after spending more than $1.4-billion (U.S.) since its creation in 2002.

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The South African announcement sparked immediate criticism on Thursday night. "This is a sad day for all who believe in the global struggle for justice," said Simon Adams, executive director of the Global Centre for the Responsibility to Protect, a group that strives to prevent mass atrocities.

He called it a "terrible decision" and a "slap in the face to African victims" in Darfur, Burundi and other violence-torn countries. "This is a victory for impunity and injustice," he said.

There are also legal questions about whether South Africa can withdraw from the court without allowing a full vote on the issue in its parliament. Without this parliamentary approval, its notice to withdraw could be challenged in the courts.

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About the Author
Africa Bureau Chief

Geoffrey York is The Globe and Mail's Africa correspondent.He has been a foreign correspondent for the newspaper since 1994, including seven years as the Moscow Bureau Chief and seven years as the Beijing Bureau Chief.He is a veteran war correspondent who has covered war zones since 1992 in places such as Somalia, Sudan, Chechnya, Iraq and Afghanistan. More

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