South Africa backpedals after controversial comments about withdrawal from the International Criminal Court

As the president of Russia Vladimir Putin is expected to visit South Africa during a BRICS meeting in August, the government is embarrassed to have to deal with the arrest warrant issued by the International Criminal Court.

South Africa and Finland Presidents
South Africa President Cyril Ramaphosa and Finland President Sauli Niinistö during a state visit in Pretoria on April 25 | © Matti Porre, Finland President office

South Africa has clarified that it remains a participant in the International Criminal Court after declarations from officials that it wanted to withdraw from it. The erroneous declarations came as the ICC issued an arrest warrant against the president of Russia, Vladimir Putin, who is expected to go to South Africa in August for a BRICS meeting.

During a joint press conference on Tuesday after a state visit by Sauli Niinistö, the president of the new NATO member Finland, the president of South Africa Cyril Ramaphosa said that “it is prudent that South Africa should pull out of the ICC,” referring to the uncomfortable position the country is currently in and reacting to declarations from the ruling party African National Congress (ANC).

In March, the International Criminal Court issued an arrest warrant against Mr. Putin and Maria Lvova-Belova, the commissioner for children’s rights in the president’s office, for the war crime of abducting Ukrainian children and deporting them to Russia.

As one of the 133 signatories of the Rome Statute acknowledging the ICC jurisdictions, South Africa would need to arrest Mr. Putin if he sets foot on South African soil. And as a matter of fact, the Russian president is expected to come to the country on August 22-24 for a BRICS meeting.

Brazil, Russia, India, China, and South Africa (BRICS) will attend an annual summit organized in Durban, which will be the first in-person summit since 2019 and the COVID-19 pandemic. South Africa sent out invitations and said a delegation from Russia would come to prepare for Mr. Putin’s visit.

It is still very unsure that Mr. Putin will actually come. Since the arrest warrant, He only went outside his country to visit Marioupol, the destroyed Ukrainian city taken by Russian troops. Before, the President of Russia didn’t leave the country since the start of the invasion of Ukraine, except for a visit to the former Soviet countries Tajikistan and Turkmenistan in 2022.

On June 1 and 2, foreign ministers of BRICS countries will meet in Cape Town.

During a media briefing on April 25, ruling party ANC’s Secretary General Fikile Mbalula mentioned the national committee reflected on a withdrawal from the ICC because of how the Court applies international criminal law. Mr. Mbalula also said South Africa would not remain a “scapegoat” for “big powers” by carrying the responsibility to detain prominent leaders, according to News24.

The governing party has decided again there should be a pullout so that will be a matter that will be taken forward,” Mr. Ramaphosa declared next to the Finnish President, who didn’t want to make any comment. South Africa’s president also said the country didn’t have an official posture yet on what to do regarding Mr. Putin’s arrest warrant as the “matter was under consideration and in discussion.”

Legislation to withdraw from the ICC removed from Parliament last December

The government has sought legal advice on how to deal with the situation. South Africa had taken a non-aligned stance regarding the Russian invasion of Ukraine.

With the news of a withdrawal from the ICC, speculation quickly emerged it was considered a way to avoid dealing with the arrest warrant of Mr. Putin.

But the Presidency and the ruling party African National Congress clarified their statements.

The ANC statement published on Wednesday aimed to clarify such a consideration was “raised as a measure of last resort,” which “may have created an unintended impression that a categorical decision for an immediate withdrawal had been taken. This is not so.”

Late last night, the Presidency published a statement following “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.”

It reinstated that “South Africa remains a signatory to the Rome Statute and will continue to campaign for equal and consistent application of international law.”

But an arrest of Mr. Putin, should he come to South Africa, remains unlikely. Deputy Minister of public enterprises Obed Bapela told the South-African daily Sunday Times earlier this month that the ANC’s position on Mr. Putin was that no sitting head of state would be arrested in the country. Mr. Ramaphosa also sent a delegation to Washington to avoid a diplomatic crisis with the United States.

South Africa argues the ICC applies international law inconsistently and follows a Western view of the world with double standards by prosecuting much more easily African suspects than Western leaders or allies of Western countries. It also wants to apply immunity for heads of state differently.

The controversy came only a few months after legislation to withdraw from the ICC was removed from Parliament.

Sent to Parliament in 2017 during the administration of former president Jacob Zuma, the legislation to step out from the ICC was never carried forward. It followed the non-compliance by South Africa with the request by the ICC for the arrest and surrender of Omar Al-Bashir, the former head of state of Sudan until 2019, for war crimes, crimes against humanity and genocide allegedly committed in Darfur.

Mr. Al-Bashir stayed in South Africa for two days for an African Union meeting in 2015 and was not arrested. South Africa defended that Sudan, which is not a party to the ICC treaty, provided Mr. Al-Bashir immunity from criminal proceedings and arrests. Therefore, it was not obliged to arrest and surrender him to the Court. A number of African states didn’t arrest Mr. Al-Bashir when he visited them either.

South Africa seeks to “invigorate” the Malabo Protocol that would establish a continental criminal court complementing the ICC as a court of last resort.

The Malabo Protocol, adopted by the African Union in 2014 but that no country has yet ratified, provides for criminal jurisdiction inclusion within the African Court of Justice and Human Rights remit.

But one of the most controversial aspects of the Malabo Protocol is the immunity from prosecution granted to serving heads of state before this international court. For the ICC, serving heads of state and senior state officials do not enjoy such immunity even if a third state provides immunity in its domestic criminal jurisdiction.

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