South Africa’s Duty to the ICC - There is one!

Part II

In our previous article we discussed what the International Criminal Court (ICC) is as well as what the duties of signatories to the Rome Statute are.

But with the BRICS Summit looming, the question on everyone’s mind is- what will South Africa do with Putin and the warrant of arrest issued by the ICC?

Based on the info we set out in our previous article, the position seems quite clear to most people.  

And yet….

We repeat – it’s not that simple. Apparently.

The ICC’s position didn’t stop South Africa from declining to enforce an ICC warrant of arrest for  the Sudanese dictator Omaral-Bashir who visited South Africa for an African Union summit (chaired by Zimbabwe’s erstwhile president, Robert Mugabe) in 2015.

The ICC had issued two warrants of arrest for al-Bashir in 2009 and 2010 for alleged genocide and war crimes in Darfur. At the time it was reported that –

“African states accuse the court, which is based in The Hague, of only targeting political leaders on their continent and failing to bring those responsible for war crimes in the Middle East and else where to justice”.

The South African government’s justification for refusal to carry out the warrant of arrests was because – as the Daily Maverick sets out – as a “host agreement” the government had published a notice in the Government Gazette granting immunity to delegates and attendees -

“provided the requisite reprieve to South Africa not to comply with its ICC obligations of arresting President Bashir during his attendance of the summit”.

And as further (and recently) reported by TheGuardian –

“Pretoria argued that it saw “no duty under international law and the Rome statute to arrest a serving head of state of a [ICC] non-state-party such as Omar al-Bashir”, and several other countries that he visited also declined to arrest him”.

Ooi! That doesn’t sound too good, now does it.

The failure to retain al-Bashir by the South African government led to hard criticism. Around the world.

The Southern Africa Litigation Centre sought justice from the High Court in this regard. In response, the High Court held that the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 -

“enjoys legislative authority, having passed through Parliament, and it cannot be displaced by a notice promulgated by a Minister or by a Cabinet decision”.

This ruling was confirmed by the Supreme Court of Appeal in a reportable judgement where they emphasised that the Implementation of the Rome Statute of the International Criminal Court Act’s exclusion of immunity -

“is a clear indication that South Africa does not support immunities when people are charged with international crimes”.

And that the Government Gazette notice -

“demonstrated that as far as South Africa was concerned this involved a departure from its commitment to its obligations under the Rome Statute”.

The above rulings by the South African High Court as well as the Supreme Court of Appeal were later supported by the ICC itself stating (in a lengthily report) that –

“reliance by States Parties to the Rome Statute on immunities or special procedural rules to deny co-operation with the Court would create – at least as concerns requests for the arrest and surrender of individuals subject to a warrant of arrest – an insurmountable obstacle to the Court’s ability to exercise its jurisdiction. Such a situation would clearly be incompatible with the object and purpose of article 27(2) of the Statute.

Indeed, the Court’s jurisdiction with respect to persons enjoying official capacity – the exercise of which fully depends on States Parties’ execution of the Court’s warrants of arrest and assistance in the conduct of investigations – would be reduced to a purely theoretical concept if State Parties could refuse co-operation with the Court by invoking immunities based on official capacity any immunity belonging to a State Party, including that of its Head of State, is irrelevant and cannot be raised as a ground for refusing the arrest and surrender of a person sought by the Court. In other words, in accordance with the Statute, a State Party would have the duty to arrest and surrender to the Court its own Head of State if the Court made a request for cooperation to that effect”

The result is therefore that a State Party cannot refuse to comply with a request by the Court for the arrest and surrender of the Head of State of another State Party as any possible immunity vis-à-vis the Court has been rendered inapplicable with the ratification of the Rome Statute. The irrelevance of immunities based on official capacity with respect to proceedings before the Court is incorporated in the Statute as a basic principle to which States Parties subscribe by having voluntarily ratified the Statute”.

Following this debacle, and in 2016, the South African government attempted to withdraw from the ICC. But it wasn’t that easy. Firstly, while the Rome Statute provides for withdrawal procedures, that includes a one year waiting period before the withdrawal becomes effective.

In addition, the Democratic Alliance (DA) raised concerns over this behaviour and sought interference from the Courts. The South African government was ordered to follow the correct constitutional procedures in order to withdraw from the Rome Statute. Debating such a move had to be done in Parliament.

The government cannot unilaterally decide to withdraw from international treaties (like the Rome Statute). Where is the Democracy in that?

As a result, South Africa’s attempt to withdraw from the ICC was declared invalid under the South African Constitution (GroundUp).

The position – it would clearly seem – is that if the ICC issues a warrant of arrest any party to the Rome Statute would be obliged to comply.

But it appears that it is still not as simple as that.

South Africa’s current position

Whether or not South Africa will comply with its obligations to the ICC – and as far as Putin’s arrest is concerned - remains very much in the balance.

And there are several concerning reasons for this -

Ø In February this year, South Africa held naval exercises with China and Russia. The manoeuvres were criticised by the US and the EU, who questioned the timing – one year after Russia launched its invasion of Ukraine. A move South Africa is calling routine but which has fuelled domestic criticism and fears the drills would endanger important relations with Western partners (Reuters).

Ø South Africa formally invited Putin to attend the BRICS Summit in August. Despite the war raged in Ukraine.

Ø In March, the Minister of International Relations and Cooperation Dr Naledi Pandor, in an interview with SAfm, highlighted that “withdrawing the invitation sent out to Putin at this stage would possibly stymie the landmark BRICS summit set for South Africa” (IOL).

Ø In April, Ramaphosa caused confusion when he stated that South Africa would withdraw from the ICC, contradicting a December 2022 ANC resolution that the government must “rescind” its withdrawal from the ICC (Daily Maverick).

Ø On the 15th of May, the South African National Defence Force (SANDF) said that its army chief, Lawrence Mbatha, was in Moscow for a bilateral meeting, visiting Russian military academies to hold talks with officials (Reuters).

Ø On the 29th of May, Minister of International Relations and Cooperation Dr Naledi Pandor, gazetted a notice granting general immunity “to the participants of the BRICS Ministerial Meeting and the BRICS summit for the duration of both meetings” (Daily Maverick). Which is reminiscent of the position South Africa took in 2015 when it failed to comply with the ICC’s warrant of arrests of al-Bashir. A position which was strongly condemned – both by our own judiciary as well as by the ICC.

Ø Again in May this year, a serious allegation was raised by US ambassador Reuben Brigety that South Africa supplied arms to Russia. If this allegation is confirmed it would undoubtedly have serious consequences for South Africa. That could include sanctions, which South Africa can ill afford.

If South Africa really had the intention to withdraw from the ICC, it could have taken measures to align our own legislation with its withdrawal from the ICC. Namely the International Crimes Bill which aimed to repeal the Implementation of the Rome Statute of the International Criminal Court Act, and also  set out to guarantee absolute immunity from arrest and prosecution to incumbent senior government officials.

But this Bill was withdrawn on the 10th of March this year, one week before the ICC issued its arrest warrant against Putin.

So, where does this ultimately leave South Africa?

As set out by TheDaily Maverick –

“If all these arguments of the government were a true reflection of its principles relating to international criminal justice, there has been ample time to align our domestic law with it. The government could either have adopted the International Crimes Bill, or it could simply have amended the existing Implementation Act.

Instead, it completely withdrew the former and has not made any move towards amending the latter. The current legal obligations on South Africa, in terms of domestic and international law, as well as the three courts’ decisions, are therefore clear: the government must arrest and surrender Putin to the ICC should he enter South African territory”.

Common sense would dictate that the warrant of arrest issued by the ICC should be honoured by South Africa if Putin steps foot on South African soil.

However, it’s anyone’s guess what direction our government will take. Will the situation and the arguments levelled by the government during the al-Bashir debacle raise their ugly heads again?

Will South Africa commit a historic mistake?

The fact is – there is the correct stance here in support of international relations and commitments undertaken by South Africa to “protect victims of genocide, crimes against humanity and war crimes by holding their perpetrators criminally responsible” (DailyMaverick). One where there is seemingly no legal way out of, versus the wrong approach by South Africa to ignore the ICC in an attempt to further trade relations with Russia, despite the fact that –

“Russia is ranked as South Africa’s 51st economic partner. It has no technology of note to export to South Africa, other than those that can kill people, and maybe some cheap-ish oil, should China and India leave anything on the table.

Continuation of the obvious, if unspoken, support for Russia will cost South Africa billions of dollars in trade and millions of jobs once some of our biggest trading partners come to the point of no return, which is approaching fast” (The Daily Maverick).

Political unrest, a disintegration of international relations with our most important partners (most notably the US who have threatened “South Africa with loss of its lucrative duty-free access to the world’s largest consumer market in retaliation for the country’s close ties to Russia”) and sanctions imposed, which according to News24could spell disaster -

“The risk of secondary sanctions being imposed on South Africa amid the ongoing geopolitical polarisation resulting from the Russia-Ukraine war has increased," said the SARB in its annual report. "Should these risks materialise, it would exacerbate the challenge of declining domestic financial market depth and liquidity."

In the time between those risk assessments, the USA imposed sanctions on a South African flight school –because of its relationship with China – and, last week, an American legislator proposed that South African companies should be banned from benefiting from the reconstruction of Ukraine”.

That all looms ahead of us.

But that said, hope is a wonderful thing – because there may still be some yet.

In a recent visit to Russia (as part of a delegation of African leaders seeking peace between the country and Ukraine), it has been reported that Ramaphosa took the opportunity to present Putin with three options around the BRICS summit: staying away, attending virtually, or attending in person but at another location.

Putin was apparently amicable to staying away.

The rationale for Ramaphosa’s actions is unclear. Up until now every indication was that Putin would be allowed to enter and then leave South Africa without facing the ICC.

But perhaps it’s the fact that “Markets were pushed into a panic as this narrative built momentum over the past few months and hit a peak after economists, analysts, and even the South African Reserve Bank flagged risks of the country facing secondary sanctions due to its ties to Russia. This sent a message across markets that the country would be putting in excess of R400 billion’s worth of trade agreements with Western nations at risk if it continued its perceived support of Russia”.

That aside, South Africa may not be in the clear yet.

Because there’s still the question of providing arms toRussia as alleged by the US Ambassador. Adding to that is the fact that South Africa participated in “war games” with China and Russia on the anniversary of Russia’s invasion of Ukraine.

South Africa even allowed sanctioned vessels and aircraft to land at military ports! And to make things worse - anti-West utterances from government cadres were heard loud and clear. Sweeping them under the rug may not be so easy (Business tech).

Sanctions therefore still hover over us like mirages in the distance.

And all we can really do is wait with bated breath.

If you have any questions on the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys.

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