Critics of South Africa’s foreign policy were given further grist for their mill as news emerged from the recent AU Assembly (held in Addis Ababa from 30-31 January 2011) that the continent’s leaders, including those from South Africa, had agreed to transmit a request to the UN Security Council asking it to defer the International Criminal Court’s (ICC) proceedings in respect of Kenya. Not only does the decision undermine Pretoria’s claim to support the ICC, it also belies South Africa’s expressed commitment to a principled, rule-bound international order. The offer of support further weakens the integrity of South Africa`s ‘mission creep’ refrain with regard to its foreign policy and confirms the view that certain of South Africa’s questionable positions on the Security Council have been cloaked under a veil of ‘principle’.
To start with, the AU’s request to the Security Council is a legal folly. The appeal is the product of a spirited yet fractious week of diplomacy by the Kenyan government, in which several African capitals were lobbied to support a request to the Security Council to halt ICC investigations into post-election violence in Kenya under article 16 of the ICC’s Rome Statute. Article 16 grants the Security Council the power to ‘defer’ an ongoing investigation or prosecution if (crucially) the Security Council determines it is necessary for the maintenance of international peace and security under chapter VII of the UN Charter. The AU has previously called for such a halt in proceedings in respect of the ICC’s investigation into the crimes allegedly committed in Darfur by President Omar al-Bashir of Sudan.
The problem with making the same request for Kenya is that the situation in that country clearly does not meet this threshold. It would be necessary for Kenya to show that the continued involvement of the ICC is a greater threat to international peace and security than suspending the ICC’s work: a standard which is difficult to prove. The politics are in any event transparent. Kenya’s request – coming not when the ICC`s investigation started, but only when powerful political players were announced as suspects – suggests backroom maneuvering to shield these suspects or their allies from the ICC’s reach. In short, the request is legally indefensible, and the politics suspect.
So baseless is this request in law that it is hard not to conclude that it is a political salvo designed to elicit a negative response and thereby further alienate the ICC from Africa. Those who stand to benefit are the powerful: the subjects of the Kenyan investigation and al-Bashir. The losers are the victims of appalling violence in both countries. This alone ought to have been reason for Pretoria – which has stated its commitment both to the ICC and the principles of international law on more than one occasion – to distance itself from the request.
What makes matters worse is that there was a legally palatable alternative (even if the politics remained dubious). That was for Kenya to oust the ICC`s jurisdiction by claiming reliance on the court`s principle of complementarity: Kenya could have contended that it was no longer necessary for the ICC to prosecute those most responsible for the 2007-8 violence because Kenya is willing and able to do the job at home. South Africa could have stressed in the AU that it would support a Kenyan push for domestic prosecutions. Indeed, just before the AU summit the head of the ICC Assembly of States Parties went to Nairobi and asked the Kenyan authorities to approach the ICC directly rather than seek a deferral. There was also the option of approaching the ICC prosecutor to request him to suspend his investigations under article 53(4) of the Rome Statute. None of this was done – which speaks volumes about Kenya’s real willingness to prosecute its own domestically, and about Africa’s commitment to international criminal justice more generally.
South Africa’s position on Kenya has wider negative implications for South Africa’s foreign policy. In the past Pretoria has refused to vote in support of Security Council resolutions condemning Myanmar (Burma). It has defended its stance on the basis of countering the Security Council’s ‘mission creep’, and has done so through Pretoria’s narrow construction of the Security Council’s mandate as not including human rights violations that don’t amount to a threat to international peace and security. Legally, South Africa’s position is based on a strict interpretation of the Security Council’s mandate and the negative effect that such expansive interpretations of the its mandate has on other fledging institutions like the UN Human Rights Council. Further, this position is not unconnected to Pretoria’s continued concern about the unjust composition of the Security Council whose permanent membership still mirrors post-WWII, colonial power relations. Whatever the merits of this principled stance in law, the difficulty is that South Africa’s position has effectively led to the protection of human rights abusing regimes like the one in Burma.
The problem with South Africa’s ‘mission creep’ refrain is that it is, both legally and ethically, predicated on consistency. To the extent that Pretoria adopts a narrow, textual interpretation of the UN Charter and the powers it confers on the Security Council, it cannot credibly support a position which characterises the ICC investigations in Kenya as a threat to international peace and security. What has emerged from the AU summit is that South Africa is willing to blow hot and cold in its foreign policy on the Security Council. In its purported resistance to the Security Council’s mission creep, it proved itself willing to cast the human rights of Burmese victims down the river. Now, in its endorsement of Kenya’s request for a Security Council deferral of the ICC’s investigation, Pretoria seems to have forgotten its ‘principled’ opposition to mission creep. Such forgetfulness comes at a cost: the human rights of Kenya’s victims of post-election violence have been cast down the same river.
[This article appeared in the Institutute for Security Studies' ISS Today on 22 February 2011]