Why SA’s withdrawal from the ICC is not the end of the world

The announcement of the Cabinet decision to unsubscribe SA from the International Criminal Court (ICC) in The Hague, has been met with the expected reductionism in South African public discourse.

This reductionism attributes this ICC withdrawal, solely, to the moral and ethical failings of a single individual — Jacob Zuma — and his motley crew. Much as mysticism in the dark ages served as a substitute for rational inquiry, so too in today’s SA, Zuma’s character flaws serve as a substitute for substantive analysis.

SA’s withdrawal has to be located within the context of the crisis of legitimacy being suffered by unilateral western multilateralism. This crisis of legitimacy is presaged by western failures such as Iraq, Libya, the 2008 financial crisis, Brexit and the resurgence of Russia as a force in Syria and Crimea. Further this ICC withdrawal has to be located within the context of the emergence of an alternate pole of world power — China.

Zuma clearly does not fear global backlash as a result of withdrawing from the ICC, so we have to ask ourselves what is it about the global macro-political environment that has changed since SA felt compelled to subscribe to the Rome Statute.

Mark Gevisser notes in his biography of Thabo Mbeki, The Dream Deferred, that around the late 1980s both Margaret Thatcher and Ronald Reagan refused to heed ANC president Oliver Tambo’s plea for them to take a public stand against the apartheid government.

This refusal was despite the then momentum of global opinion on apartheid. Communism was the major concern, which prevented both Thatcher and Reagan from taking this stand. This threat of communism was embodied by the USSR and its proxies; the ANC was feared as one such proxy. The dominant lens through which world leaders of that time saw the world was of communism vs capitalism.

The subsequent fall of the Berlin wall ushered in an age which political analyst Francis Fukuyama termed “the end of history”. By this he meant that the contest of ideology which had presaged the Cold War was over and from then onwards, Western liberalism would become the self-evident and inevitable governing ideology.

This post-Berlin wall emergent reality was not lost on the ANC leadership — especially the likes of Thabo Mbeki. Furthermore, this new “end of history” reality even resulted in the Vietnamese succeeding where others failed: to impress on newly released Nelson Mandela that the nationalisation of strategic industries was a thing of the past. This post-Berlin wall emergent reality caused the ANC to jump with both feet into capitalist and liberal reforms of both the state and the economy.

Gevisser, in recording a circa 2008 off-the-record conversation with Mbeki, notes Mbeki having called these reforms the “stitching of SA into the global economy”.

This “stitching” into the global economy meant being party to all the progressive accords promoted by multilateral world bodies, these being the UN, Word Bank, International Monetary Fund, World Trade Organisation, Group of Seven, etc. In other words, the fall of the USSR made western liberalism and capitalism seem inevitable (or at least, likely to dominate for the next couple of decades), and thus had Mbeki and company overzealously signing up to all the associated multilateral accords. Mbeki and company were overly eager to show they could play by the rules of the western club.

However, today’s world is a little bit different. Since the fall of the Berlin, three significant developments have taken place globally: the emergence of China as a hegemon, the 2008 world financial crisis and Brexit.

The emergence of China means that an alternative to US power has arrived. So countries that do not feel like kowtowing to the demands of the Western establishment can run and hide behind the giant figure of China for protection. The US would be leery to censure these smaller countries because of the threat of this giant.

The 2008 financial crisis served as a huge own goal for the unbridled free-market type economy that the West has foisted on the rest of the world. Further, the subsequent currency volatility in emerging markets as a result of the carry trade occasioned by quantitative easing mechanisms undertaken in Western countries did little to help world sentiment.

The trajectory of western states coalescing around shared governments was dealt a huge blow by Brexit. Essentially, Brexit is saying to the world that even the West is actually not singing from the same hymn sheet about delegating sovereignty to multilateral bodies (the EU in this case). So emerging countries are now looking askance at requests for them to delegate their sovereignty.

These developments have created an environment where countries feel that unilateral western multilateralism is not inevitable. Instead these smaller countries feel that they are free to choose among equal alternatives.

We are now in the early stages of a frozen cold war between the west and the emergent eastern power bloc. This cold war is frozen because China, by strategy, has chosen not to be confrontational but rather is tactically biding its time. These are the early stages of the death of unilateral western multilateralism.

If our ICC withdrawal is part of this frozen cold war strategy then SA should not align with China out of misplaced sentimentality. Rather, SA should use this emergent tension to ensure that we get the most economic and political benefit as possible. Because once China enters its middle and end game, SA may pale in strategic importance to China as opposed to other countries such as Nigeria, the Democratic Republic of Congo, Ethiopia, Indonesia and Brazil.

There is alarmist human rights public discourse around SA’s withdrawal from the ICC but this alarmism is based on fallacious reasoning. It is argued that SA is choosing to turn its back on human rights accords.

However, much like how post-Brexit Britain (after triggering Article 50) is going to ensure policy and regulation continuity by domesticating EU laws, so too SA could domesticate Rome Statute laws, with the final arbiter being the Constitutional Court instead of the ICC. It does not hold that we need to expunge those laws from our jurisprudence if we withdraw from the ICC.

Magolego is a former Mandela-Rhodes scholar and Fulbright scholar at Caltech

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