SA in a jam over international court
The International Criminal Court (ICC) arrest warrant for President Vladimir Putin of Russia for alleged war crimes, and his possible participation in the Brazil, Russia, India, China and SA summit later in 2023, has put SA’s relationship with the ICC in the international spotlight.
The International Criminal Court (ICC) arrest warrant for President Vladimir Putin of Russia for alleged war crimes, and his possible participation in the Brazil, Russia, India, China and SA (Brics) summit later in 2023, has put SA’s relationship with the ICC in the international spotlight.
SA, as a member of the ICC, has a legal duty to fully co-operate with the ICC, and this includes the execution of arrest warrants. SA has also incorporated the Rome Statute (a multilateral treaty that established the ICC) into domestic law in accordance with the constitution, which prescribes the process in terms of which treaties become law in SA.
After SA’s failure to arrest Omar al-Bashir — the former president of Sudan — during his visit to participate in an AU summit in 2015, the Supreme Court of Appeal (SCA) found that the government was in breach of international and domestic law as well as the constitution.
The Putin and Bashir situations are comparable in that Bashir was also a sitting head of state at the time of his visit to SA and he was also the subject of an ICC arrest warrant for various atrocity crimes.
At the time, SA claimed that visiting heads of state were protected from arrest because of immunities, but that claim was rejected by both the SCA and the ICC. The main reason for this is that the Rome Statute, the multilateral treaty that SA signed, ratified and incorporated into domestic law, provides that head-of-state immunity does not apply for cases before the ICC. SA’s own domestic law, which incorporates the Rome Statute, provides for the procedures that apply when SA is asked by the ICC for co-operation, including with the execution of arrest warrants. And on this, the SCA held in the Bashir matter that there is a duty on SA to disregard immunity for heads of state and co-operate fully with the ICC.
After the Bashir debacle, the government decided to withdraw from the ICC. The Rome Statute provides for withdrawal procedures, including a oneyear waiting period before the withdrawal becomes effective. But SA’s attempt to withdraw encountered domestic legal and constitutional obstacles.
In a case brought by the DA, the government was ordered to follow the correct constitutional procedures to withdraw from the Rome Statute.
This means the government cannot simply decide to withdraw from international treaties (such as the Rome Statute) without debate in parliament.
SA’s attempt to withdraw from the ICC in 2016 was, therefore, declared to be invalid under the constitution.
It is important to keep in mind that the court did not say the constitution requires SA to be a member of the ICC — that decision is ultimately a policy matter to be debated in parliament. But, there is a certain process to be followed to withdraw from the ICC, and on that, the constitution is clear. court After and this’ SAs decision failed attempt by the to withdraw from the ICC, the government published the International Crimes Bill of 2017. This bill was not considered by parliament and was, in fact, withdrawn earlier in 2023 in the light of the ANC’s decision in 2022 that SA would remain a member of the ICC.
But the International Crimes Bill gives us insight into the government’s thinking in terms of a possible scenario where SA might withdraw from the ICC.
This scenario came to the fore last week after a confusing statement by President Cyril Ramaphosa indicating that SA would withdraw from the ICC. That was later clarified by both the presidency and the ANC, and it seems that SA will remain a member of the ICC (for now).
To be clear, even if SA were to withdraw from the ICC, this would not affect the country’s current duties under the Rome Statute to execute the Putin arrest warrant, and it would take a year before the withdrawal takes effect.
Where do we stand now? There are three basic scenarios for the way forward.
The first scenario is the status quo: SA remains a member of the ICC and the domestic implementation legislation remains unchanged.
In the second scenario, SA remains a member of the ICC, but with significant amendments to the domestic implementation legislation. This is where the 2017 International Crimes Bill gives us some clues about government thinking. The most important issue is that of immunities.
In this scenario, SA’s domestic law will be amended to provide for immunities so that a future visit by a head of state or other foreign dignitary will not be complicated by any arrest warrants as we have seen with the Bashir visit and also now with the possible visit by Putin for the Brics summit in August. Whether such an amendment will be in compliance with the Rome Statute and the constitution is debatable, but the government seems convinced that this is a legitimate balance between SA’s foreign policy interests and the demands of international criminal justice.
The third scenario is the most drastic: full withdrawal from the Rome Statute of the ICC. This is what was attempted in 2016. The withdrawal failed then for procedural reasons, but it remains a question whether or not SA will make another attempt at withdrawal.
SA played an important role in the drafting of the Rome Statute of the ICC in 1998 and was one of the first countries in Africa to fully incorporate the statute into domestic law.
History suggests that SA will probably remain a member of the ICC, but with some important changes in the relationship on the cards.
Kemp is professor of international criminal justice at the University of Derby, and extraordinary professor of public law at Stellenbosch University. This article first appeared in GroundUp.