South Africa has unmatched economic and moral power on the African continent, where the International Criminal Court (ICC) has focused its first prosecutions. The government's attitudes towards the ICC are shaped by its anti-colonial struggle against apartheid and by its own choice of a Truth and Reconciliation Commission. South African politicians and analysts maintain that their country is a firm supporter of the ICC and the international justice system. The country prides itself on being one of the first countries to ratify the Rome Statute and incorporate it into national law. "I do think that we have quite an activist record when it come to international law and translating international law into foreign policy, although this may not always come through," said Garth Le Pere, the head of the Institute for Global Dialogue, a Johannesburg-based NGO. The government has sometimes come under fire for political ambitions that seem disproportionate to its means. Last year, Richard Calland, a political analyst at the Institute for Democracy in South Africa, saw the government's efforts to mediate between the Palestinians and Israel as unrealistic. "Perhaps it is the government's foreign policy groupies rather than its professional diplomats that encourage such distended thinking. I heard one the other day suggesting that South Africa has 'a unique role to play' in the North Korean case," he said. In his opinion, the country must more reasonably be "a niche player, based on a sound strategic understanding of what is going on, aided by its own experience and a concomitant moral weight." Along those lines, no one contests South Africa's influential role as mediator on the African continent.

Pretoria is involved in several crucial peace negotiations in the Democratic Republic of Congo, Burundi, Côte d'Ivoire and Sudan. Thus, the testing ground for some of the Court's first efforts, where its success and credibility are at stake, happens to be South Africa's primary zone of influence. "The Court is an important institution for Africa, as it is a symbol of our determination, together with other regions and individual states, to put an end to impunity in accordance with the commitment of African countries to work towards this goal," said South African ambassador Hlengiwe Mkhize at a public meeting with the ICC's Office of the Prosecutor in the Hague.

Priority to peace

But, in all these peace talks, South African mediators have seemingly given greater priority to peace than to criminal prosecution of those responsible for serious crimes. South Africa puts more energy into bringing the parties in a conflict to a national negotiated solution rather than raising the standard of international criminal justice. In July 2006, in the midst of peace negotiations over northern Uganda, South African President Thabo Mbeki told delegates at the World Economic Forum that the ICC "poses a real, genuine problem, [...] that blocks the possibility of a peaceful settlement" in Uganda. For the Court at The Hague, asserting at the time the urgent nature of the arrest warrants issued for the leaders of the Lord's Resistance Army rebellion, it was a slap in the face. The same lack of fervor could be felt for the Sudan issue. Media reports recently indicated that the government quietly supports the ICC's indictments of two suspects accused of war crimes in Darfur. The official response in February, however, was not overwhelmingly supportive of the process. "These are early days. We are now trying to contact the Sudanese government, trying to contact the ICC and trying to understand what are the processes and what implications this will have on the broader comprehensive peace agreement in Sudan," Aziz Pahad, Deputy Minister of Foreign Affairs, was quoted as saying.

According to the chairwoman of the parliamentary committee on foreign affairs, Fatima Hajaig, South Africa sees the ICC as a "necessary instrument" and Mbeki's comments on Uganda might reflect a particular concern with the process in that country. Others suggest that Pretoria is careful not to look like the "big brother" of Africa or "the colonial masters," according to attorney Anton Katz. "It has to be left to the players to decide on the parameters of justice with peace and reconciliation," said Le Pere. He said that South Africa is working to get parties to agree on a political framework and fundamental principles that might lay the foundation for a subsequent pursuit of justice. Pretoria thus was not downplaying justice in favor of peace. Rather, it was seeking to build accountability into peace agreements. Le Pere also explained that South Africa's role in the Sudan was influenced by the mandate of the AU Peace and Security Council, of which South Africa is a long-time member. In this pan-African context, Mbeki plays a mediating role, trying, for example, to persuade Khartoum to authorize an "embryonic" peace-keeping force.

Truth Commission or justice ?

South Africa doesn't want to be viewed as sacrificing justice for peace. In August 2004, following the massacre in Gatumba, Burundi, South African authorities directly invited the ICC Prosecutor to investigate the case. Hlengiwe Mkhize lays out the difficulty: "As many of these crimes occur in the context of an armed conflict, it is necessary to determine the appropriate interplay between the delivery of justice (through the Court and/or through local or national initiatives) and efforts to secure peace and reconciliation." But what is this interplay in the mind of South African leaders? In 2002, John Bolton, then American Undersecretary of State for Arms Control and International Security and already a staunch opponent of the ICC, provocatively referred to the South Africa's Truth and Reconciliation Commission as an alternative to the universal court. "[It] is certainly fair to conclude that that approach is radically different from the ICC, which operates through vindication, punishment, and retribution," he stated. On the other hand, the sluggish pace at which, parallel to the Truth Commission, the state has tried to prosecute individuals for crimes committed during apartheid supports the idea of a government hardly inclined to encourage trials. In 2002, after a two-and-a-half-year trial, the proceedings against Dr Wouter Basson, who headed the country's secret chemical and biological warfare project under apartheid, failed. That same year, two army members were acquitted of a massacre in 1992. In 1996, former minister Magnus Malan and several other military leaders were acquitted for a 1987 massacre. In mid-2006, the press announced that six cases related to apartheid-era crimes would soon be heard in court. Nothing has emerged since then.

"We believe in negociated solutions"

"On balance, I think South Africa is trying to uphold a foreign policy aimed at development and stability on the African continent, with human rights as a secondary outcome," explains Gerhard Kemp, a senior lecturer in the faculty of law at Stellenbosch University. "To this end, South Africa has proved in the past to cooperate with states with questionable human rights records - for example, Equatorial-Guinea. But South Africa is of course not unique in this regard." Kemp notes that South Africa's foreign policy is perceived as being informed by "uncritical African and developing nation solidarity," referring to South Africa's attitude towards Zimbabwe and its vote against a resolution by the United Nations Security Council regarding human rights violations in Burma. "The establishment of the International Court of Justice was an acknowledgement of the need for an international court. The ICC has been the next logical step in enhancing multilateralism," explained South African Minister of Foreign Affairs Nkosazana Dlamini-Zuma in 2003 at a reception in the Netherlands. "We believe in negotiated solutions. But we also believe that there should be sanctions, and, if need be, there should be the possibility to charge those guilty of crimes against humanity before an international court." Dlamini-Zuma's statement - "if need be" - captures South Africa's profound ambivalence towards the ICC.