A few weeks ago, South African President Cyril Ramaphosa caused confusion globally by saying that his African National Congress had decided to pull out of the International Criminal Court. Within hours, his office issued a clarification which said: “Based on public discussion and pronouncements on South Africa’s participation in the International Criminal Court, the Presidency wishes to clarify that South Africa remains a signatory to the Rome Statute and will continue to campaign for equal and consistent application of international law.” Between these two divergent positions, taken within hours of each other, lies the dilemma South Africa faces as it prepares to host a meeting of the Brics grouping comprising, besides itself, Russia, China, India and Brazil.
The meeting, scheduled to be held in August in Johannesburg, is usually attended by heads of government, and South Africa’s dilemma stems from the outstanding warrant of arrest against Russian President Vladimir Putin for alleged war crimes, which as a signatory to the Rome Statute, it is bound to enforce. While the country has issued blanket diplomatic immunity to all those who will attend the summit meeting, experts are unsure if this can override the ICC warrant.
Meanwhile, Mr. Ramaphosa is seeking in Article 98 of the Statute a loophole that may save him and Mr. Putin the embarrassment of having to deal with the warrant. This article provides: “The court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person … of a third state, unless the court can first obtain the cooperation of that third State for the waiver of the immunity.” In an official statement last month, South Africa said it “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 last thing the country would want is a repeat of the embarrassment it faced in 2015 when it had to contend with the prospect of being asked by its High court to arrest then Sudanese president Omar al-Bashir, who was under an ICC indictment and was attending an African summit. In the event, Mr al-Bashir fled South Africa before the court could take a decision. There is a political challenge, too, that South Africa must deal with.
The country has already been accused by America of sending weapons to Russia during the ongoing war, a charge that Pretoria has denied. But the ANC regime has traditionally enjoyed warm ties with Moscow, a consequence of the support that the anti-apartheid movement received from the erstwhile Soviet Union, and a Russia-South Africa summit is planned next month in St. Petersburg. If Mr. Putin chooses not to attend the Brics summit, it would of course save his hosts considerable embarrassment. But with increasing stress, especially from China, on strengthening Brics as a counterpoint to G7, and with African nations being courted by the grouping, Mr. Putin may decide his attendance is essential. That will complicate matters.