Just as South Africa finished rescinding its withdrawal from the International Criminal Court (ICC) over the saga of former Sudanese President Omar al-Bashir’s 2015 visit to Johannesburg, it probably wished it had withdrawn after all. Because now the government has to deal with another dilemma over the visit of a head of state with an arrest warrant from the ICC: Russian President Vladimir Putin.
So Pretoria is playing again with the idea of traction outside the ICC. Or at least amend South Africa’s 2002 ICC legislation to try to legalize the immunity of visiting heads of state. This raises the question of whether the country’s revised approach towards the international court might inspire some of the other 33 African signatories to the Rome Statute of the ICC to follow suit.
Pretoria was reprimanded by the ICC and its own courts after ignoring an ICC request to arrest and hand over Mr. al-Bashir when he visited the country for an African Union (AU) summit. Mr. al-Bashir was charged with genocide, war crimes and crimes against humanity allegedly committed between 2003 and 2008 in the Darfur region of Sudan.
ICC arrest warrants for Mr al-Bashir and Kenyans Uhuru Kenyatta and William Ruto, who became presidents, sparked anger in the AU and an instruction to member states not to cooperate with the court. It also triggered movements in Africa to withdraw.
South Africa under former President Jacob Zuma tried to leave but was blocked in 2017 by its courts because the measure had not been approved by Parliament. Then President Cyril Ramaphosa replaced Zuma, and the steps to withdraw were shelved and eventually abandonmentin March of this year.
However, just a few days later, the ICC issued its arrest warrant for Putin. The Russian president is allegedly responsible for war crimes against children in Ukraine since February 2022. The court’s decision sparked panic in Pretoria, as Putin is scheduled to visit South Africa in August for the BRICS summit (with Brazil, Russia, India and China).
Then last week both Mr. Ramaphosa and the African National Congress (ANC) caused quite a stir by announcing that South Africa intended, again, to withdraw from the ICC. This came as a shock to rule of law advocates inside and outside government, who were heartened by the recent confirmation of their commitment to the international court.
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Then, just a few hours later, both retracted these decisions. They said withdrawal was the last option if other solutions to the dilemma of hosting Putin and fulfilling his obligations to the ICC failed. This embarrassing twist has sparked considerable speculation about Ramaphosa’s competition. Some wonder if Russia has some powerful control over the ANC, perhaps financially.
Justice Minister Ronald Lamola suggested a solution when he told Parliament this week that the government was exploring the possibility of amending the country’s ICC implementing law to allow for the usual diplomatic immunity for visiting heads of state. Lamola said that countries like Britain and the Netherlands have tamed the Rome Statute to allow the executive to abandon or suspend the operations of the statute if it is not in the national interest to implement it.
Experts have privately expressed doubts to ISS Today that the law can be changed in time for the BRICS summit. It seems more likely that the summit will be held virtually or elsewhere. Still, Pretoria seems to be preparing for future visits by allies who could take on the ICC.
The government has once again made it clear that it believes the ICC is biased in its trials against Africa and the enemies of the West. The ANC, Mr Ramaphosa and Mr Lamola cited Amnesty International’s Human Rights Report 2022/2023 which damned the international community, including the ICC, for ‘shameless double standards’.
Amnesty International said the West’s “forceful response to Russia’s aggression against Ukraine,” including the ICC’s indictment of Putin, “stands in stark contrast to a deplorable lack of meaningful action on grave violations committed by some of its allies.” , including Israel, Saudi Arabia and Egypt.” He also compared the ICC’s action against Russia to “regrettable responses in conflicts like Ethiopia and Myanmar.”
Could similar sentiments motivate other African countries to consider withdrawing from the ICC? South Africa has a particular grievance due to its BRICS membership and strong historical ties to Russia, or at least the Soviet Union.
But other African countries have similar links. The ruling South West African People’s Organization in Namibia also received military and other support from the Soviet Union in its liberation struggle. President Hage Geingob, who visited South Africa last week, also threatened to remove Namibia from the ICC. before.
The fact that many African countries voted against or abstained from United Nations General Assembly resolutions condemning Russia’s aggression in Ukraine suggests that dismay over Putin’s impeachment may spread to other states on the continent.
The ANC’s decision to rescind its withdrawal from the ICC also noted that few African countries had ratified the malabo protocol. This would allow the African Court to replace the ICC as a viable, and from Africa’s perspective, more objective judge of genocide, crimes against humanity, war crimes and transnational organized crime.
However, the continent has no real intention of establishing a viable African Court. Therefore, withdrawing from the ICC should not be a real option. However, the type of changes that Mr Lamola is proposing could have some traction on the continent, even if it means undermining the most important purpose of the ICC: to ensure that even heads of state do not escape justice.
There is another irony in this saga. While the ANC welcomed Amnesty International’s criticism of the ICC’s disproportionate approach in Ukraine, would the ANC necessarily appreciate a more impartial approach in practice?
This week, Nigerian lawyer and human rights activist Chidi Odinkalu reprimanded the ICC for focusing so much on Ukraine that it was neglecting violence in Sudan, including Darfur, ‘a place under active ICC consideration’. It was in Darfur, of course, where atrocities were committed nearly 20 years ago for which Mr. al-Bashir was indicted.
If the ICC were to issue arrest warrants for the two antagonists in the Sudan war, Abdel-Fattah al-Burhan and Mohamed Hamdan Dagalo, and one of them emerged as Sudan’s head of state, would Pretoria and other African capitals be happy to give him? welcome?
Peter Fabricius, Consultant, Institute for Security Studies (ISS) Pretoria
(This article was first published by ISS Today, a syndication partner of Premium Times. We have your permission to republish.)