Written by SFL African Executive Board member, Nicholas Woode-Smith

There seems to be two categories of calls for why South Africa must leave the International Criminal Court (ICC).

1. The ICC violates African sovereignty and is an enemy of Africa.
2. The ICC is worthless.

1. ICC is an enemy of African Sovereignty

In response to #1, this assumes that sovereignty effectively means that corrupt and evil elites can have carte blanche over their respective nations. As no reasonable individual believes this should be the case, then #1 is effectually debunked. On the contrary, having an independent institution that can aid good governance and accountability strengthens sovereignty.

In the Weberian conception of sovereignty – a state is sovereign when it exercises legitimate authority and a monopoly of force on a geographical area and society – many African countries, notably Somalia and the Democratic Republic of the Congo (DRC), do not fulfil this requirement. Rather, they are divided among many capricious warlords, who prey on the populace as mini despots.

Herbst and Mills have written extensively on the problems facing failed states in Africa, suggesting many solutions that would be condemned as neoliberal in some circles, but which have worked in states which have deigned to adopt them. In a fascinating article by the two writers, they argue that the DRC is not actually a country. In fact, treating it like a country has exacerbated its problems, they argue, and prevented any form of meaningful solutions.

I advise everyone to read the article, linked above. Simply, it argues that treating a truly unsovereign state as sovereign has prevented it from moving towards a solution. In this manner, Africa’s obsession with sovereignty over solutions has led to its stagnation and ruin.

In this sense, the true enemy of African sovereignty is African governments and the overarching institution of the African Union which bars any meaningful solutions to Africa’s instability. Rather, they condemn the ICC, a body that is aimed at enforcing stability and justice worldwide.

Unfortunately, this fallacy has convinced many South Africans. Suffice to say that the ICC does not pose a threat to South African sovereignty – rather, it acts as a potential defender of South Africans from self-enriching elites who may mean to do harm. One cannot expect the courts of a nation to be sufficient to keep leaders in check; in this manner, an international institution, like the ICC, is valuable to hold criminal elites accountable.

2. The ICC is worthless

I have seen a few commentators argue that the ICC is useless and hasn’t helped Africa. Firstly, this is more the fault of Africans barring it from effectively dealing with African criminals than any internal vices. Mainly, however, the ICC may be worthless or ineffective, but it isn’t a net loss on Africa; if anything, it is a net gain, as it does scare criminal elites.

If this is your problem with the ICC, then it is not really a case of convincing you that the ICC is valuable; it is more a case of convincing you that the ICC is more valuable than detrimental. This is easy to prove, as evidenced by criminal elites’ fears of the institution. Criminals don’t fear an ineffective force, so their desperation to get rid of the ICC is a testament to the ICC’s value as a body to ensure accountability, or at least keep elites watching their back.

Conclusion

Fundamentally, the ICC is a net gain on South Africa and Africa as a whole. It holds elites more accountable than they would be without it. In addition, it does not violate African sovereignty and, rather, helps achieve it by enforcing stability and justice. It is a last line of defence when local courts fail to apprehend criminal elites. For these reasons, South Africa and Africa need the ICC.