Pretending to be the first semester international law student lead the SA leaving the ICC

ICC is facing a hard time during recent weeks. If no one cares about the Burundi, with all due respect, leaving, the South Africa is huge and the Gambia is the cherry on the top. While the countries are implementing their right to withdraw from the ICC without providing a legal reason, the SA story and its reasoning involves some of the international law’s basics. Even though the SA has not implicated that in its official withdrawal letter, the SA founds it difficult to decide whether it should follow its international obligations according to the international agreement or the rules of customary international law.

This legal issue has a back story. Couple years ago the SA held the AU summit during which the legendary Sudanese head of state has participated. The Sudanese president holds a special status between the world leaders — he is the only head of state to whom the ICC has issued an arrest warrant. And during the AU summit the SA, as a member of the ICC, had an obligation to arrest him and depart with the next plane directly to Hague. SA haven’t done that on the basis that the head of state has a diplomatic immunity. Diplomatic immunity is a part of customary international law which all the states usually follows.

The SA has faced the collision of two legal categories and failed to apply the correct one.

International law is a law with no implementing body, therefore it is based purely on the agreement between independent actors. Those agreements are the main source of international law, while the customary international law stands in a queue and is applied if there is no international agreement. There are variously reasons why is that, including,but not limited to: customs is hard to establish, customs changes, e.g. custom of a right to war already vanished. Coming back to the SA, the SA government obviously lost all the legal battles in national courts regarding the issue. Pretending not to know basics did not help.

Since all the legal battles were lost, and the AU members are up to leave the ICC anyway, the SA decided to waste no time. And it is upsetting, because one of Africa’s leading country has not followed its international obligation and then decided to withdraw from those obligations altogether.

Instead of the closing statement : Africa’s countries tend to blame the ICC, that the ICC is only concentrated on Africa, which is kind a true. Nevertheless this not make it right not to follow your obligations only because other continents does not get enough attention.

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