South Africa remains ICC participant, government says in turnaround

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The Presidency has moved to clarify that South Africa remains a signatory to the Rome Statute and a participant in the International Criminal Court (ICC).

“This clarification follows an error in a comment made during a media briefing held by the governing African National Congress (ANC) on South Africa’s status with regard to the ICC. Regrettably, the President erroneously affirmed a similar position during a media session today.

“South Africa remains a signatory to the ICC in line with a resolution of the 55th National Conference of the ANC – held in December 2022 – to rescind an earlier decision to withdraw from the ICC,” said the President’s spokesperson Vincent Magwenya.

President Cyril Ramaphosa told reporters on Tuesday: “The governing party, the ANC, 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,” in reference to apparent unfair treatment of certain countries.

Ramaphosa’s comments came after the ICC issued an arrest warrant for Russian President Vladimir Putin in March for his role in war crimes in Ukraine – Putin has been invited to a BRICS summit in August in South Africa although Putin has not yet confirmed attendance.

Magwenya explained that the ruling party’s 2022 decision was reaffirmed earlier this week at the party’s National Executive Committee meeting in which the NEC reflected on “the potential withdrawal from the ICC as an option that would arise as a measure of last resort in the absence of legal options that would result in fairness and consistency in the administration of international law”.

“In remaining a signatory to the Rome Statute, South Africa is guided by the importance of strengthening institutions of global governance. Accordingly, South Africa will work to invigorate the Malabo protocol that would establish a continental criminal court that would complement the ICC as a court of last resort.

“Furthermore, South Africa is considering a legislative amendment that would domesticate the Rome statute so that it reflects all the articles of the Rome Statute. This includes provision of article 98 of the statute that requires a waiver of immunities for persons charged by the ICC from third party countries where there is no referral by the United Nations Security Council.

“The manner in which the UK domesticated the Rome Statute to incorporate the provisions of article 98 has been recommended as a guideline case study,” Magwenya said.

South Africa began proceedings to leave the ICC in 2016 after a dispute over whether to arrest former Sudanese president Omar al-Bashir, who visited South Africa for an African summit while under ICC indictment for genocide and crimes against humanity. The South African government recently suspended those proceedings in the face of legal obstacles.

However, as The Guardian pointed out, even if South Africa leaves the ICC, it would still be bound by its membership obligations, including executing arrest warrants, for 12 months following its notification of withdrawal.

South Africa has refused to condemn the Russian invasion of Ukraine, saying it wants to stay neutral and preferred a dialogue to end the war.