JOHANNESBURG, South Africa — An International Criminal Court petition targeting South Africa over alleged anti-migrant violence is facing sharp criticism from legal scholars, who describe the filing as legally baseless and politically motivated. Professor Angelo Dube of the UNISA School of Law recently detailed why the International Criminal Court (ICC) is highly unlikely to entertain the application, stressing that domestic legal avenues remain fully functional and that the petition fundamentally misunderstands international criminal law.
The application was lodged by Ghanaian private citizens Palgrave Boakye-Danquah and Emmanuel Kotin. They are seeking a preliminary probe into violence against foreign nationals in South Africa, framing these incidents as crimes against humanity. The South African government has already rebuffed the move, labeling it an opportunistic maneuver devoid of legal standing.
At the heart of Professor Dube’s analysis is the principle of complementarity, a foundational pillar of the Rome Statute. This legal doctrine dictates that the ICC only intervenes when a nation’s own judicial system is demonstrably unwilling or unable to prosecute. South Africa maintains an independent judiciary, active police investigations, and specific domestic legislation that already incorporates the Rome Statute. Consequently, petitioners are required to exhaust these local remedies before approaching an international tribunal.
A major legal hurdle for the applicants is their reliance on the phrase “xenophobic attacks.” Professor Dube clarified that this is a sociological descriptor, not a codified crime under international law. To trigger ICC jurisdiction, applicants must prove that specific atrocities—such as murder, forced displacement, enslavement, or sexual violence—are being executed in a widespread and systematic manner. The current filing lacks the evidentiary foundation to meet this rigorous threshold, making it improbable that the ICC Office of the Prosecutor or the pre-trial chamber would advance the case.
Beyond legal technicalities, the expert suggested the petition may be a calculated political strategy designed to tarnish South Africa’s reputation as a human rights advocate. This reputational friction intensified after South Africa pursued a genocide case against Israel at the International Court of Justice (ICJ). Professor Dube noted that fulfilling South Africa’s obligations under the Genocide Convention and customary international law was a legal necessity, but it may have triggered geopolitical backlash. He pointed to rhetoric from figures like Donald Trump, who has expressed hostility toward the ICC and defended Israel, fueling speculation that external actors might be encouraging such legal overreach to undermine South Africa’s global standing.
The discussion also highlighted the tension between Pan-African solidarity and the practical realities of citizen protection. Professor Dube cautioned against weaponizing Pan-Africanism to excuse criminal behavior or to ignore the severe fiscal strain caused by illegal immigration. While the African Continental Free Trade Agreement champions the legitimate movement of people and goods, he distinguished this from the challenges of unlawful border crossings, which place disproportionate pressure on South Africa’s taxpayer-funded social infrastructure and constitutional obligations.
Addressing the potential role of the African Union, Professor Dube argued that a continental debate would only be productive if it honestly confronts the root causes of illegal immigration as a global phenomenon, rather than fixating on the legally inaccurate “xenophobia” narrative. He challenged African leaders to examine why there is vocal outrage over alleged xenophobia in South Africa, yet profound silence regarding well-documented, systematic crimes against humanity, such as the enslavement and trafficking of Africans in Libya and the Sahara region.
Until petitioners can provide concrete evidence of systematic, widespread crimes that domestic courts are unwilling to address, legal experts maintain that the ICC remains the wrong venue for resolving complex regional migration challenges.
