President Cyril Ramaphosa said on Tuesday that it had been decided SA would pull out of the International Criminal Court (ICC). However, this was contradicted hours later, when his office said he had spoken in error. His office confirmed a resolution made by the national executive committee (NEC) of the ANC to remain.
Speaking at a joint briefing with Finnish President Sauli Niinisto in Pretoria, Ramaphosa said: “The ANC has taken that decision that it is prudent that SA should pull out of the ICC.” The clarification came hours later, after a public outcry and media inquiries.
But SA leadership hinting at withdrawal from the ICC does not come from nowhere. “There have been several attempts and even bills in the past few years [since 2016] all indicating SA’s unhappiness with the ICC,” says Gerhard Kemp, professor of international criminal law at Derby University in the UK, previously at Stellenbosch University.
Hannah Woolaver, associate professor of international law at UCT, says legal requirements to withdraw from international treaties are not specifically detailed in the constitution. “However, the high court has held that in order to exit any treaty that has been ratified by parliament, parliament must approve SA’s withdrawal from that treaty.”
Even presuming domestic procedures, there is still a process internationally. The ICC statute that SA signed indicates that a state can withdraw, but it takes effect only one year after the ICC receives notification.
As Kemp notes, despite SA being at “the forefront of the international criminal justice project, including the drafting of the Rome Statute [which created the ICC],” SA’s attitude appears to have changed. “There seems to be two sticking points for SA,” he says. The first has to do with immunities of heads of state, such as former Sudanese president Omar al-Bashir in 2015, and now Russian President Vladimir Putin. The second sticking point pertains to “perceived Western hypocrisy”.
Speaking about the Bashir incident, international criminal lawyer Angela Mudukuti, who worked at the ICC, says: “The failure to arrest Bashir in 2015 was deeply disappointing and set a dangerous precedent as the government at the time flagrantly disregarded a domestic court order, putting domestic rule of law in jeopardy. At the international level, SA was found non-compliant by ICC judges.”
Now, with Putin invited and supposedly attending the upcoming Brics summit in SA, the country is forced again into a position to arrest a head of state, since the ICC issued an arrest warrant in March for alleged war crimes in Ukraine. As Woolaver notes, “the ICC is putting states such as SA in a difficult position — both legally and politically”.
‘Full co-operation’
But Kemp doesn’t think it is the ICC’s fault for SA being in this conundrum. “SA has agency. SA signed, ratified and implemented the Rome Statute with full knowledge of its obligations. The ICC can expect full co-operation from its member states.”
Kemp says we should instead be looking at the alleged war criminal. “If Putin values SA as an equal Brics partner, he will appreciate SA’s international commitments and obligations.”
Woolaver agrees: “Ultimately, the fault rests with the Russian regime for committing atrocities in Ukraine.” If SA refuses to follow through with such an arrest, Woolaver notes that “the ICC Chamber could refer the situation to the ICC’s Assembly of State parties to impose sanctions on SA”.
Mudukuti says SA should not abdicate responsibilities it signed up to. She acknowledges that “there are no easy solutions, but the rule of law should not be disregarded and eroded on account of potential political and diplomatic fallout”.
Both Kemp and Mudukuti think SA should stay in the ICC.
“SA has been on the forefront of the international criminal justice project,” says Kemp. “The fight against impunity is a moral imperative. The ANC itself obviously has a long history of fighting against atrocity crimes so there is also the historical imperative. SA can help shape the ICC from the inside.”
Mudukuti agrees SA could do more inside even if “the court is not perfect”.
Woolaver thinks this is a political question but, ultimately: “If SA repeatedly finds itself unwilling or unable to comply with its obligations under the Rome Statute, it may have to consider withdrawal.”
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