Cape Town, South Africa – On Tuesday, South Africa’s Justice Minister Ronald Lamola criticised the International Criminal Court (ICC), saying it was inconsistent in its work.
“The fact that an investigation into the atrocities in Palestine has not been completed while the one in Ukraine, opened later already has a referral against a non-member state is an injustice,” Lamola said while addressing Parliament.
His stance is the latest from the South African government since March when the ICC issued an arrest warrant against Russian President Vladimir Putin, accused of committing war crimes including against young children since the invasion of Ukraine in February 2022.
Russia is not an ICC member state but Putin has been invited to attend a summit in South Africa, an ICC signatory, in August. That has led to a debate, locally or internationally, about whether he will be arrested or not.
The summit is a convergence of countries in BRICS (Brazil, Russia India, China, and South Africa), a group of emerging economies.
As a signatory to the ICC’s Rome Statute, South Africa is legally obliged to act on the warrant if Putin arrives in the country. This has raised questions about the role of the ICC and its relations with Africa.
“We will explore various options with regard to how the Rome Statute was domesticated in our country including the option to look at extending customary diplomatic immunity to visiting heads of state in our country,” Lamola was quoted as saying in local daily BusinessDay.
Here are the essentials:
What is the Rome Statute and why is it being criticised?
In July 1998, 120 countries adopted the Rome Statute, the legal basis for establishing the ICC.
The court’s founding treaty entered into force on July 1, 2002, and is binding on all its 123 current members.
Notable non-signatories to the Rome statute include China, the United States, India and Russia. Ukraine is also not a member of the ICC.
The ICC has jurisdiction over four main crimes: crime of genocide; crimes against humanity and war crimes, when committed after July 1, 2002, as well as the crime of aggression, as of July 17, 2018, under specific conditions and procedures. The ICC says it is intended to “complement, not to replace, national criminal justice systems”.
However, ICC President Piotr Hofmanski has said, “The court has jurisdiction over crimes committed in the territory of a state party or a state which has accepted its jurisdiction,” he told Al Jazeera. “Ukraine has accepted the ICC twice – in 2014 and then in 2015.”
Africa is the largest regional grouping in the ICC with 34 member states.
In the past, the court has been accused of targeting only African states despite human rights abuses in Iraq, Israel, Afghanistan and Yemen.
Most of the ICC’s high-profile cases have come from Africa and at least five were referred to the court by African states including the Democratic Republic of Congo, Uganda, Central African Republic and Mali.
In 2014, Uhuru Kenyatta, then president of Kenya, became the first sitting head of state to appear at the ICC, charged with crimes against humanity during the country’s post-election violence in 2007-2008. Current President William Ruto, then his deputy, was also charged. All charges were later dropped due to “troubling incidence of witness interference and intolerable political meddling”.
In 2020, the US called the ICC a “kangaroo court” after an ICC investigation into the actions of US troops in Afghanistan. It also imposed sanctions on former ICC prosecutor Fatou Bensouda.
Vuyo Zungula, leader of the African Transformation Movement, an opposition party in South Africa told Al Jazeera that the ICC is “doing the bidding for certain powerful nations and that it’s not a fair and objective institution”.
“Our leaders in Africa are soft targets … the West is using the ICC – to try and target our leaders; as a means of curtailing the work of that leader” he said, adding that the ICC is “losing its legitimacy”.
What is South Africa’s history with the ICC?
South Africa joined the ICC in 1998.
In 2015, the ICC issued an arrest warrant for the former Sudanese leader, Omar al-Bashir. Al-Bashir was charged with committing genocide, crimes against humanity, and war crimes during the 2003-08 Darfur war. He came to the country to attend an African Union summit but authorities there refused to arrest him, angering the ICC after his exit. The ANC then threatened to leave the court.
The South African government applied to withdraw from the ICC but in 2017 a court ruled that the move was “unconstitutional”.
According to Hannah Woolaver, associate professor of law at the University of Cape Town, the ICC arrest warrant against Putin “matters because SA is part of ICC and signed up to the Rome Statue”. This means South Africa has a legal obligation to execute the arrest warrant, she said.
“As an international organisation, it [the ICC] does not have the power to arrest anyone but its member states have ‘faithfully executed’ it as this is essential to the functioning of the ICC,” added Woolaver.
To withdraw or not to withdraw?
At the end of April, Fikile Mbalula, secretary-general of the governing African National Congress (ANC) told the media that it was “hypocritical” to think that the country will arrest Putin and it would withdraw from the ICC.
“This ICC does not serve the interest of all, it serves a few,” Mbalula said.
President Cyril Ramaphosa also initially supported his party’s stance.
“Yes, the governing party has taken the decision that it is prudent that South Africa should pull out of the ICC, largely because of the manner in which the ICC has been seen to be dealing with these types of problems,” he told the media during a state visit of Finnish President Sauli Niinisto in March.
“Our view is that we would like this matter of unfair treatment to be properly discussed,” Ramaphosa said. “But in the meantime, the governing party has decided once again that there should be a pull-out, so that will be a matter that will be taken forward.”
In a remarkable twist, Ramaphosa’s office backtracked only a few hours later, saying the country would not be withdrawing from the ICC and blamed a communication error.
“South Africa remains a signatory to the ICC, this clarification follows an error in a comment made during a briefing held by the ANC, regrettably the president erroneously affirmed a similar position”.
What happens next?
According to reports, Putin has indicated that he will attend the summit in Cape Town on August 22-24. He has attended all BRICS summits since he was re-elected for a third term in 2012 – including one in Johannesburg in July 2018.
This has put South Africa in a dilemma of arresting a figure as controversial as Putin.
Writing for the European Journal of International Law, Woolaver wrote, “It should also be recognised that by issuing an arrest warrant against a sitting Head of State of a non-party State in the absence of a Security Council referral, the ICC is putting States such as South Africa in a difficult position – both legally and politically.”
Many in the governing party and opposition are certain that there will be no arrest in August.
According to Obed Bapela, deputy minister of Co-operative Governance and Traditional Affairs, the ANC’s position on Putin is that no sitting head of state would be arrested while in the country.
“It will be a dream,” Zungala told Al Jazeera. “It will not happen.”
However, Alan Winde, premier of the Western Cape province and chieftain of the opposition Democratic Alliance has said that if Putin sets foot in Cape Town, local officers will arrest him.
“If the police is not instructed to act, we will,” said Winde.