The United States (US) is now moving aggressively to reduce the power of the International Criminal Court (ICC). Secretary of State Marco Rubio is leading a wider campaign involving sanctions, visa restrictions, financial pressure, and diplomatic action against officials and institutions supporting cases involving the US and Israel.

South Africa should pay attention.

The central issue is not Israel, Donald Trump, or any particular ICC investigation. It is whether sovereign democratic states should surrender their authority to unelected global institutions whose judges and prosecutors are not answerable to the people affected by their decisions.

South Africa confronted this question in 2015 when Sudanese president Omar al-Bashir attended an African Union summit in Johannesburg.

The ICC had issued warrants for his arrest. South African courts ordered the government to prevent him from leaving the country. The government nevertheless allowed him to depart.

That was the right decision on three grounds.

The first is sovereignty – or the principle that a state has the ultimate authority to govern itself, make and enforce its own laws, conduct its own foreign affairs, and exercise power within its own territory without being subject to the authority of another state or external institution. Sovereignty matters because it ensures that the immense powers of the state, including the power to make laws, prosecute crimes, wage war, and conduct foreign policy, remain accountable to the citizens who must live under them. In a democracy, those powers derive their legitimacy from the consent of the governed. Governments can be voted out, legislatures can change the law, and courts operate within a constitutional framework established by the nation itself. When sovereign authority is transferred to external institutions that are insulated from domestic democratic accountability, citizens lose part of their ability to shape, restrain, and ultimately control the exercise of political power in their own country.

The second is that global diplomacy cannot occur if states are under the external obligation to arrest each other’s leaders regardless of what those are accused of doing. And the risks in the breakdown of global diplomacy are very much greater than addressing the crimes, however awful, that any individual leader stands accused of.

The third is a broader point about global institutions generally. It is a mistake for democratic societies to submit to the authority of these institutions as their memberships are often dominated to a degree by autocracies. For example, only 85 of the 137 signatories of the Rome Statute, from which the ICC draws its authority, are classified as free democracies. This problem is starkest at the United Nations (UN) where just 45% of member states in its General Assembly are classified as free democracies. Yet many democracies, and many people and institutions within them, take near automatic moral guidance from the UN’s various proclamations. It is an absurd thing to do.

The Jacob Zuma administration understood a lot of this and argued, for its own reasons of course, but remember it is the principle of things that matter, that on al-Bashir its obligations to the ICC conflicted with the diplomatic immunity granted to a serving head of state attending an international summit.

In 2016, South Africa’s government formally gave notice that it intended to withdraw from the Rome Statute.

The Pretoria High Court, however, ruled in 2017 that the executive could not withdraw without first obtaining parliamentary approval. The court did not rule that South Africa was constitutionally required to remain in the ICC. It ruled that the government had followed the wrong procedure and legislation intended to enable withdrawal stalled and was eventually abandoned.

Rubio is now advancing the sovereignty argument South Africa failed to carry through – with the nuance that the US never ratified the Rome Statute. Nevertheless, South Africa’s unity government would be wise to dust off its exit legislation and complete the process that started a decade ago. Democratic institutions and the world as a whole will be safer and better off for it.