ISS: Pretoria once again on the horns of an ICC dilemma

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Just as South Africa was done 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(ICC) over the saga of former Sudanese president Omar al-Bashir’s 2015 visit to Johannesburg, it probably wished it had withdrawn after all.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 a visiting head of state with an ICC arrest warrant – Russian President Vladimir Putin.

So Pretoria is again toying with the idea of pulling out of the ICC. Or at least amending South Africa’s 2002 ICC legislation to try to legalise immunity for visiting heads of state. This raises a question about whether the country’s revised approach to the international court might not inspire some of the 33 other African signatories of the ICC’s Rome Statute to follow suit.

Pretoria was reprimanded by the ICC and its own courts after ignoring an ICC request to arrest and surrender al-Bashir when he visited the country for an African Union (AU) summit. Al-Bashir was indicted for genocide, war crimes and crimes against humanity allegedly committed between 2003 and 2008 in Sudan’s Darfur region.

The ICC arrest warrants for al-Bashir, and Kenya’s Uhuru Kenyatta and William Ruto, who both became presidents, provoked anger in the AU and an instruction to member states to not cooperate with the court. It also triggered moves in Africa to withdraw.

South Africa under former president Jacob Zuma tried to leave but was blocked in 2017 by its courts because the move hadn’t been approved by Parliament. Then President Cyril Ramaphosa replaced Zuma, and the steps to withdraw were shelved and eventually dropped, in March this year.

However, just days later, the ICC issued its warrant for Putin’s arrest. The Russian president is allegedly responsible for war crimes against children in Ukraine since February 2022. The court’s decision threw Pretoria into a panic as Putin is due to visit South Africa in August for the BRICS summit (with Brazil, Russia, India and China).

So last week, both Ramaphosa and the African National Congress (ANC) caused an uproar by announcing that South Africa intended, again, to withdraw from the ICC. This was a shock to rule of law advocates inside and outside government, who were encouraged by the recent confirmation of their commitment to the international court.

Then, just hours later, both recanted these decisions. They said withdrawal was the last option if other solutions to the dilemma of hosting Putin and complying with its ICC obligations failed. This embarrassing about-turn has prompted considerable speculation about Ramaphosa’s competence. Some wonder whether Russia has some powerful hold over the ANC, perhaps financial.

One solution was suggested by Justice Minister Ronald Lamola when he told Parliament this week that government was exploring the possibility of amending the country’s ICC implementation act to allow the usual diplomatic immunity to visiting heads of state. Lamola said countries such as Britain and the Netherlands had domesticated the Rome Statute to allow the executive to exit or suspend the statute’s operations if it was not in the national interest to implement them.

Without a viable African Court, withdrawal from the ICC shouldn’t be a real option
Experts have privately expressed doubts to ISS Today that the law could be amended in time for the BRICS summit. It seems more likely that the summit will be held virtually or elsewhere. Still, Pretoria appears to be preparing for future visits by allies who might fall foul of the ICC.

The government has again made it clear that it thinks the ICC is biased in its prosecutions against Africa and enemies of the West. The ANC, Ramaphosa and Lamola have all quoted Amnesty International’s 2022/2023 human rights report that blasted the international community – including the ICC – for ‘shameless double standards.’

Amnesty International said the West’s ‘robust response to Russia’s aggression against Ukraine’ – including the ICC indictment of Putin – ‘contrasts sharply with a deplorable lack of meaningful action on grave violations by some of their allies including Israel, Saudi Arabia and Egypt.’ It also contrasted the ICC action against Russia to ‘pitiful existing responses on conflicts such as Ethiopia and Myanmar.’

Could similar sentiments motivate other African countries to consider withdrawal from the ICC? South Africa has a particular grievance because of its BRICS membership and strong historical ties to Russia, or at least the Soviet Union.

But other African countries have similar ties. Namibia’s ruling South West Africa People’s Organisation also received military and other support from the Soviet Union in its liberation struggle. President Hage Geingob, who visited South Africa last week, has also threatened to pull Namibia out of 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 at Putin’s indictment may extend 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 enable 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 organised crime.

The continent has no real intention of establishing a viable African Court though. So withdrawal from the ICC shouldn’t be a real option. However, the sort of changes Lamola proposes could have some traction on the continent, even though that means blunting the most important purpose of the ICC – to ensure that even heads of state don’t escape justice.

There is another irony in this saga. While the ANC welcomed Amnesty International’s criticism of the ICC’s disproportionate focus on Ukraine, would the ANC necessarily appreciate a more even-handed approach in practice?

This week Nigerian human rights lawyer and activist Chidi Odinkalu rebuked the ICC for being so focused on Ukraine that it was neglecting the violence in Sudan – including Darfur, ‘a location under active ICC consideration.’ It was in Darfur, of course, that atrocities were committed almost 20 years ago for which Bashir was indicted.

If the ICC were to issue arrest warrants for the two antagonists in Sudan’s 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 welcome him?

Written by Peter Fabricius, Consultant, ISS Pretoria.

Republished with permission from ISS Africa. The original article can be found here.