Some once solid-seeming pillars of the international system have taken their licks this year, the European Union and American democracy among them. But both are in good health compared to the International Criminal Court, which has seen a string of defections over the past couple of months alone. This week, Russia announced it was quitting the ICC, just days after the Court declared the Russian-annexed Crimea was under a “state of occupation.” Gambia and Burundi, two small African countries with despotic governments, announced that they were leaving the court in October. But so did South Africa, a cosmopolitan democracy and one of the continent’s political and economic leaders.
As a practical matter, the ICC’s jurisdiction, and with it its ability to deter and prosecute some of the world’s worst human rights violations, shrinks with every country that leaves. The defections also undermine the central idea under which the court is organized. The ICC theoretically exists on behalf of all humankind: the preamble to the 1998 Rome Statute, the Court’s founding document, begins by noting that the various state signatories are “conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage” and also “concerned that this delicate mosaic may be shattered at any time.” The court requires member states to cede crucial aspects of their national sovereignty to a supra-national legal institution not just in order to create a safer and more orderly world, but in the interest of a common human destiny. The South African case is an especially vivid illustration of just how little pressure it takes to crush these lofty ideals—and of the implications this might have for Israel, a country often on the receiving end of the international legal regime.
South Africa is pulling out of the ICC largely because of a dramatic incident that unfolded on June 14th and 15th. That week, Sudanese president Omar al-Bashir was in South Africa for an African Union summit, traveling to a Rome Statute member state in defiance of a 2009 ICC arrest warrant over his government’s alleged crimes against humanity while fighting an ongoing insurgency in Darfur, in western Sudan. The warrant was the Court’s first for a sitting world leader, and it obligated every Rome Statute member to arrest Bashir if the Sudanese dictator ever set foot in their territory. On June 14th, the High Court in Pretoria ruled that Bashir was prohibited from leaving the country until the court could hear a petition from South African human rights groups requesting the Sudanese leader’s arrest. But the next day, Bashir’s plane took off from a South African air force base outside Pretoria. He was back in Khartoum, and thus safely out of ICC jurisdiction, by nightfall.
The arrest warrant, and the South African government’s apparent role in spiriting Bashir out of the country, represented something of a constitutional crisis. The government had violated its international legal commitments in letting Bashir go, while also ignoring the decision of one of its own judges. The case raises a host of interesting legal questions: Under South Africa’s system, does sovereign immunity override something like an ICC arrest warrant? The government of president Jacob Zuma had a simple and elegant way around such dilemmas. On October 21, South Africa announced its intention to leave the ICC, with a government spokesperson saying that the Rome Statute was “in conflict and inconsistent” with South African law.
There’s a rule of unintended consequences at work here. When the Bashir arrest warrant was issued seven years ago, prosecutors couldn’t have suspected that it would eventually precipitate one of the most severe crises in the Court’s young history. The arrest warrant never resulted in Bashir’s trial or imprisonment, but it did allow a serial human rights abuser to invert the letter and spirit of international law. Each visit Bashir made to a Rome Statute member state—including democracies like Kenya and Nigeria—became a referendum on the court’s coercive power, and on the depth of that member state’s actual commitment to international justice. Bashir boasts a flawless record in undermining the court’s authority and credibility, and the South African case represents his biggest victory yet. For a time, South Africa was especially committed to the ideals and mechanisms of international justice, perhaps in light of the role of global institutions and international law in undermining the apartheid regime. When faced with a choice between abiding a slight infringement of national sovereignty or leaving the ICC entirely, even South Africa opted for the latter.
South Africa’s hypocrisy is particularly glaring. Whatever one may think of Vladimir Putin, Russia is at least an unabashed revisionist power that obviously thinks it has something to gain from the fall of the existing international order. Moscow’s actions over the past decade—support for separatist militia movements, aggression against its neighbors, indiscriminate bombings in Syria—have pushed global norms to their limits and often violated them outright. By contrast, South Africa’s supposed commitment to human rights, and its status as an exemplar of social and political reconciliation, have become key elements of its foreign policy and its national self-image. This often came at the expense of Israel: Since its term on the UN Human Rights Council began in 2014, South Africa has voted in favor of every single resolution concerning Israel, while opposing or abstaining from every other resolution involving every other country, including human rights violators like Syria and Iran. Russia, the revisionists with very little use for the international system, have been no less hypocritical in their willingness to use that system against the Jewish state as well: Both Russia and South Africa voted in favor of the October UNESCO resolution denying Jewish links to Jerusalem’s Temple Mount.
South Africa and Russia want to apply standards to Israel that they won’t accept for themselves, but it would be myopic for supporters of the Jewish state to be cheered by any irony here. The costs of a dysfunctional system of international accountability are especially obvious at the moment. The New Yorker’s Ben Taub has doggedly reported on efforts to document the Assad regime’s crimes in Syria, in preparation for prosecutions of regime officials that Taub and his sources realize may never actually occur. “Nowhere has the supposed deterrent of eventual justice proved so visibly ineffective as in Syria,” Taub wrote this past August. An ineffective and hypocritical international order is a diplomatic inconvenience for Israel—but a tragedy just over the border.