South Africa’s Proposed Exit from the Rome Statute: Alternative Perspectives

Abstract

AbstractIn the aftermath of the Omar al Bashir case, South Africa’s engagement with the International Criminal Court (hereafter the ICC) is at an anti-climax. Conventional perspectives from the decisions of the ICC assert the sanctity of treaty obligations. However, alternative perspectives can be explored. There is a need to address continuing dissatisfaction with and limitations of the Rome Statute. Dissent by States parties may signal need for review of the treaty and introduction of new procedures for conducting consultations with States to improve compliance. The Rome Statute does not deal with resolving on-going armed conflicts and should be complemented by alternative processes for addressing such threats to peace and security. Withdrawal from treaties is a normal fact of life in the international legal system. States exit from treaties when changed circumstances, shifting domestic priorities, or dissatisfaction with treaty-based institutions create tensions between national interests and international commitments. This would not necessarily be regarded as retrogressive. Exit by a significant number of important states may be the catalyst required for reform of contentious aspects of the treaty system. Therefore, South Africa’s proposed exit from the Rome Statute can be a potentially positive development.