Pretoria once again on the horns of an ICC dilemma

Just as South Africa suspended its withdrawal from the International Criminal Court (ICC) over the saga of former Sudanese President Omar al-Bashir’s visit to Johannesburg in 2015, it probably wished it had withdrawn after all. Because now the government has to deal with another dilemma for a visiting head of state who has an ICC arrest warrant: Russian President Vladimir Putin.

So Pretoria is once again toying with the idea pulling outside the ICC. Or at least the South African 2002 ICC amendment legislation to try to legalize the immunity of visiting heads of state. This raises the question whether the country’s revised approach to the international court will not inspire some of the other 33. the african Signatories to the Rome Statute of the ICC to follow suit.

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

The The ICC’s arrest warrants for Mr. al-Bashir and Kenya’s Uhuru Kenyatta and William Ruto, who both became presidents, sparked outrage at the AU and orders from member states not to. cooperate with the court It also caused movements in Africa withdraw

South Former President Jacob Zuma tried to leave Africa, but that was it blocked In 2017 its courts failed to approve the move by Parliament. Mr Zuma was then replaced by President Cyril Ramaphosa, and steps to back down were abandoned and ended fall, in March of this year.

However, a few days later, the ICC issued an arrest warrant for Mr. Putin. The Russian president is said to be responsible for war crimes against children in Ukraine since February 2022. The court’s decision sent shockwaves through Pretoria, where 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 a stir by announcing South Africa’s intention to withdraw from the ICC. This came as a surprise to advocates of the rule of law both inside and outside government, who were encouraged by the recent reaffirmation of their commitment to the international court.

READ ALSO: South Africa Unlike Nigeria by Zainab Suleiman Okino

Then, a few hours later, both throw back these decisions They said the withdrawal was a last resort if other solutions to the dilemma of welcoming Mr. Putin and meeting his ICC obligations failed. This embarrassing twist has led to much speculation about Mr Ramaphosa’s competence. Some wonder if Russia has some powerful influence over the ANC, perhaps financial.

One solution was hinted at when Justice Minister Ronald Lamola told Parliament this week that the government was considering amending the country’s ICC implementing act to allow visiting heads of state customary diplomatic immunity. Mr Lamola said countries such as Britain and the Netherlands had internalized the Rome Statute to allow the executive to withdraw or suspend the operation of the statute if its implementation was not in the national interest.

Experts have privately expressed doubts to ISS Today that the law could be changed in time for the BRICS summit. The summit is likely to take place virtually or elsewhere. However, Pretoria appears to be preparing for visits by allies who may turn against the ICC.

The government has made it clear again that it believes the ICC is a party to the trials against Africa and its enemies of the West. The ANC, Mr Ramaphosa and Mr Lamola referred to Amnesty International’s 2022/2023 human rights report. explode the international community – including the ICC – for “shameless double standards”.

Amnesty International said the West’s “strong response to Russia’s aggression against Ukraine” – including Putin’s ICC indictment – “is in stark contrast to the lack of meaningful action on serious violations by some of their allies, including Israel, Saudi Arabia and Egypt”. He also contrasted the ICC’s action against Russia with “deplorable responses to conflicts such as Ethiopia and Myanmar”.

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

But other African countries have similar ties. The South West African People’s Organization of Namibia 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 Mr Putin’s indictment may spread to other states on the continent.

He also noted that the ANC’s decision to withdraw from the ICC was ratified by few African countries. Vague protocol. This would allow the African Court to replace the ICC as a viable – and from an African perspective, more objective – judge of genocide, crimes against humanity, war crimes and transnational organized crime.

The continent has no intention of establishing a viable African Court. So pulling out of the ICC should not be a real option. However, the changes proposed by Mr. Lamola may include some traction on the continent, even if this means abolishing the most important goal of the ICC, ensuring that even heads of state do not 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 consider a more even approach in practice?

This week Nigerian human rights lawyer and activist Chidi Odinkalu scold Because the ICC was so focused on Ukraine that it was ignoring the violence in Sudan, including Darfur, “a location the ICC is actively considering.” It was in Darfur, of course, that almost 20 years ago atrocities were committed and Mr. al-Bashir was indicted.

If the ICC issued arrest warrants for the two antagonists of the Sudanese 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?

• Peter Fabricius, consultant, Institute for Security Studies (ISS) in Pretoria

(This article was first published by ISS Today, syndicate partner Premium Times. We have their permission to republish it.)