On July 15, two Ghanaians named Palgrave Boakye-Danquah and Emmanuel Kotin filed a complaint with the Office of the Prosecutor of the International Criminal Court regarding anti-foreigner attacks in South Africa. In the complaint, which was made public on July 22, it was alleged that incidents of murder, assault, looting, and forced displacement targeting migrants constituted a widespread and systematic pattern of attacks; it was further claimed that state authorities had failed to fulfill their duties to prevent, investigate, and punish these crimes. Pretoria, however, dismissed the complaint as opportunistic and argued that the country possesses robust domestic legal mechanisms to combat discrimination.[i]
At first glance, this development might give the impression that South Africa will be tried in The Hague. However, the International Criminal Court does not try states. The Court’s jurisdiction extends to natural persons responsible for crimes covered by the Rome Statute. Therefore, the direct outcome of the application will not be a ruling on state responsibility regarding the administration of President Cyril Ramaphosa. Nevertheless, the case presents a serious legal and political test that could shed light on the connection between the state’s duty to protect and individual criminal responsibility.
The social underpinnings of the tension in South Africa are fueled by severe economic hardship. The country’s official unemployment rate rose to 32.7 percent in the first quarter of 2026, with the number of unemployed reaching 8.1 million. Under a broader measure that includes those who have given up looking for work, this rate stands at 43.7 percent. When income inequality, inadequate public services, and the fear of daily crime converge, migrants become easy targets for structural problems that are difficult to resolve. Thus, economic anger is channeled into a political narrative that frames them as a security threat based on their citizenship status.[ii]
The association of migrants with crime and unemployment is driven more by the power of repetition than by evidence. The fact that foreigners—who make up only about 5 percent of the population—are portrayed as the primary source of a national crisis highlights the disconnect between numerical reality and political narrative. Neighborhood patrols, workplace raids, and attempts to evict people from their homes result in the transfer of migration management from public institutions to de facto groups. In this process, the demand to combat irregular migration can turn into collective punishment that targets even documented migrants and native citizens based on their appearance, language, or names.
From the perspective of the human security approach, the problem extends beyond border control. If a person’s life, physical integrity, shelter, and livelihood are protected only based on their citizenship, then the state’s capacity to ensure security is fragmented. Violence directed at migrants not only forces the targeted community to leave the country but also normalizes lawlessness within the host society. The same forces that loot a foreign-owned store today may turn tomorrow against another group perceived as economically or politically vulnerable. For this reason, migrant security cannot be viewed separately from the institutional resilience of South African democracy..
The most challenging aspect of the application under the Rome Statute is not so much the existence of individual serious crimes as it is their classification within the context of crimes against humanity. Acts such as murder, forcible transfer, and persecution are listed in Article 7 of the Statute. However, the Office of the Prosecutor must demonstrate that these acts were part of a widespread or systematic attack directed against a civilian population, that the attack was carried out in accordance with the policy of a State or organization, and that the suspects were aware of this nature of the attack. While repeated attacks provide strong initial evidence, it is essential to establish an evidence-based link between social hatred and the organizational policy sought by the Court..
The state’s inaction takes on particular significance at this point. If delays in police intervention, ineffective investigations of complaints, or the impunity of perpetrators become a recurring pattern, this passivity can evolve into a governance practice that enables such attacks. In its statement dated July 3, 2026, the South African Human Rights Commission expressed concern over increasing reports that foreigners were being unlawfully evicted from their homes and shelters, that humanitarian aid was being obstructed, and that businesses owned by foreigners were being threatened. These findings necessitate that the allegations in the petition be further examined by the relevant authorities.[iii]
Nevertheless, there is no direct link between inadequate public administration and complicity in crimes against humanity. Criminal liability is personal; office, political failure, or moral failings cannot, on their own, be considered sufficient grounds for conviction. The prosecution will need to identify specific individuals who ordered, incited, aided, or failed to take necessary measures despite knowing of their subordinates’ crimes, as well as establish their mental state. Although the political weight of the case may be significant, its legal outcome depends on proving the connection between identifiable perpetrators and the pattern of attacks.
In terms of jurisdiction, South Africa’s accession to the Rome Statute opens the first door to the Court. The country ratified the Statute on November 27, 2000, and accepted the Court’s territorial jurisdiction over crimes under the Statute committed on its territory. However, the submission of a communication to the Office of the Prosecutor does not imply that an investigation has been opened. The Office of the Prosecutor will first assess the reliability of the information, whether the crimes fall within the Court’s subject-matter jurisdiction, their gravity, and their admissibility. Articles 7, 12, 15, and 17 of the Rome Statute define the legal boundaries of this process.[iv]
The principle of complementarity constitutes Pretoria’s strongest line of defense. The International Criminal Court was not designed to serve as a court of first instance that supersedes national jurisdictions. If South African authorities are sincerely investigating or prosecuting the same individuals for the same acts, a potential case may be deemed inadmissible. The government’s emphasis on domestic legal mechanisms is therefore legally significant. However, the mere existence of legislation on paper will not suffice; the scope and independence of the investigations, the status of the perpetrators, and the actual progress of the prosecutions will be examined.
South Africa’s 2002 Rome Statute Implementation Act allows for the prosecution of genocide, crimes against humanity, and war crimes in national courts. Consequently, the referral imposes both a defense and a responsibility on Pretoria. Conducting effective domestic investigations could narrow The Hague’s scope for intervention. Persistent impunity, however, undermines claims of national capacity. From the government’s perspective, the most convincing response would be transparent investigations into the structures that planned and carried out the attacks, protection for victims, and measurable judicial outcomes—rather than diplomatic objections..
The issue’s impact on African politics may unfold more rapidly than the legal process. The support provided by countries across the continent during the struggle against apartheid has secured a strong moral place for the Pan-Africanist narrative within South Africa’s foreign policy identity. The targeting of immigrants from Ghana, Nigeria, Mozambique, or Malawi creates a clear tension with this historical memory. Rising objections within the African Union, the deportation of citizens, and the postponement of bilateral meetings are taking a toll on Pretoria’s claim to continental leadership.
At this stage, South Africa must choose between two approaches to security. The first is a narrow state security approach that views migrants as the source of crime, unemployment, and strain on public services. The second is a human security approach that protects the lives, dignity, and access to justice of everyone in the country while maintaining border management. Managing irregular migration is a legitimate public duty. Leaving this duty to practices such as collective incrimination, neighborhood pressure, and de facto deportation does not strengthen state authority; on the contrary, it opens the door for violent actors to assert their dominance.
Consequently, the initiative by the Ghanaian petitioners does not imply that the South African state will find itself in the defendant’s seat at The Hague. However, it does demonstrate that recurring anti-foreigner attacks cannot be brushed off as mere local public order incidents. While the ICC process focuses on individual criminal responsibility, the debate over state responsibility will expand through the lens of national law, human rights obligations, and African diplomacy. Pretoria’s success depends not so much on its capacity to produce a hardline migration narrative as on its ability to establish police and justice institutions that function effectively for everyone.
Ultimately, it is possible that the Prosecutor’s Office will keep the communication under review, request information from South African authorities, or fail to move the case forward. Whichever path is chosen, the complaint has extended the cost of impunity beyond national borders. If the wave of violence continues and internal investigations fail to yield results, new complaints will increase pressure on the African Union and heighten tensions in bilateral relations. South Africa’s leadership on the continent will remain credible not so much by defining migrants as a threat, but rather by the extent to which it can protect them within the framework of the rule of law.
[i] “Ghanaian nationals ask ICC to probe xenophobic violence in South Africa”, Reuters, https://www.reuters.com/world/africa/ghanaian-nationals-ask-icc-probe-xenophobic-violence-south-africa-2026-07-22/, (Date of Access: 22.07.2026).
[ii] “Quarterly Labour Force Survey (QLFS), Q1: 2026”, Statistics South Africa, https://www.statssa.gov.za/publications/P0211/Presentation%20QLFS%20Q1%202026.pdf, (Date of Access: 22.07.2026).
[iii] “The SAHRC Calls for the Protection of Humanitarian Organisations and the Rights of Displaced Non-Nationals”, South African Human Rights Commission, https://www.sahrc.org.za/index.php/sahrc-media/news-2 (Date of Access: 22.07.2026).
[iv] “Rome Statute of the International Criminal Court”, International Criminal Court, 2024, md. 7, 12, 15 ve 17, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf, (Date of Access: 22.07.2026).
