Friday marks the first anniversary of Russia’s invasion of Ukraine. Russia is reportedly planning a wave of new offensives in eastern and southern Ukraine to mark the anniversary. But it will also use the date to stage mock war drills, together with China and SA, off the coastline of KwaZulu-Natal — testing its naval capacities and also, reportedly, its new hypersonic Zircon missile.
SA’s hosting of, and participation in, this joint military exercise over this ominous date has justifiably drawn accusations that the country has utterly abandoned its claimed neutrality between Russia and Ukraine. The Desmond & Leah Tutu Foundation has said the exercise is “tantamount to a declaration that SA is joining the war against Ukraine on Russia’s side”.
However, in participating in this exercise SA may need to be less concerned about the phoniness of our posture in relation to the conflict than for the illegality it reveals. In international law, states are under an obligation not to recognise as lawful situations created by a serious breach, nor render aid and assistance in maintaining that situation.
A “serious breach” is a term of art, meaning a violation of a peremptory norm of general international law. There are several of these peremptory norms, but the first — indeed the locus classicus — is the prohibition of aggression, meaning launching and waging illegal war. This takes on special significance in light of growing calls for Russia and its leaders to be held responsible for the crime of aggression, and for Vladimir Putin and other senior Russian authorities to face prosecution for this crime.
Already the International Criminal Court (ICC) is conducting investigations into possible war crimes, crimes against humanity and genocide committed in the territory of Ukraine. It can do so because Ukraine has previously issued a declaration accepting the court’s jurisdiction. But while the ICC can also nominally prosecute the crime of aggression, Russia’s veto on the UN Security Council, and its failure to join the ICC, mean Putin faces no real prospect of trial in its halls.
But there is escalating global support for a special tribunal for the prosecution of the crime of aggression, established by agreement between Ukraine and the UN at the recommendation of the General Assembly. Earlier in February European Commission president Ursula von der Leyen announced that an international centre for the prosecution of the crime of aggression in Ukraine would be established in The Hague, to be tasked with co-ordinating the collection of evidence to support future prosecutions.
The proposal was expressly tackled by several of the headliners at this past weekend’s Munich Security Conference and received the endorsement of its chair, Christoph Heusgen. In the weekend’s Financial Times international lawyer Philippe Sands argued for just such a tribunal: “I am not starry-eyed about the power of the law, but keenly aware of its limits and the need for military and diplomatic efforts. Yet if this aggression is not addressed we may as well give up on the Nuremberg moment and the crime of aggression.”
Even with concerted political will it will be some time before any tribunal is up and running. And while any tribunal will have in its sights not only Putin and his lieutenants but also key Belarusian leaders for their complicity, it seems a little far-fetched to imagine that President Cyril Ramaphosa and the SA National Defence Force leadership need fear any indictments for the aid and assistance rendered to Russia.
Still, SA’s responsibility for the internationally wrongful act of rendering aid and assistance in maintenance of a situation resulting from a grave breach is foregrounded by efforts to hold Putin and his advisers liable for the crime of aggression. It is in different international forums that SA’s liability may have the most consequence.
Ironically, it is international law judgments relating to apartheid SA’s occupation of Namibia and Israel’s construction of the wall in occupied Palestinian territory — which a democratic SA has rightly and vociferously condemned — that have most clearly brought into focus the obligations that weigh on states not to recognise as lawful situations that result from grave breaches, and not to render aid or assistance that maintains such situations.
In both of those situations the state responsible had already effected its act of aggression and other states were required not to recognise such occupations as legal. In the case of Russia the occupation of Ukraine is still being attempted. But the attempt, as much as if not more than a fait accompli, must carry with it the obligation of not recognising the situation (or attempt) as lawful, and not rendering aid or assistance in maintaining the situation (or attempt).
What the obligation specifically entails will vary from situation to situation. But in hosting a military exercise designed to enhance and promote Russia’s military capacities as it simultaneously engages in aggressive war and appears set to unleash imminent new offensives, arguably brings SA within the realm of recognising as lawful a situation resulting from a grave breach, and of rendering aid or assistance.
Moreover, in providing an opportunity for Russia to test and showcase new military hardware, as with the Zircon missile, carrying with it the threat that it is imminently to be deployed in warfare and so designed to intimidate, SA can be said to be rendering aid and assistance to Russia in maintaining the situation resulting from its grave breach, the attack on Ukraine.
SA can still call off the remainder of this military exercise. It should certainly think long and hard about being party to any segment of the exercise that involves the deployment of the Zircon missile. Its leaders may not be hauled before any tribunal for the crime of aggression, but its internationally wrongful act may nonetheless attract liability in international forums.
If nothing else, SA’s top diplomats will want to reflect on history’s judgment should the first post-Nuremberg tribunal for the crime of aggression become a reality. Should Russian foreign minister Sergei Lavrov one day be surrendered and face trial, I imagine SA international relations & co-operation minister Naledi Pandor might come to dearly regret their most recent joint press conference.
Alongside a scowling Lavrov, Pandor insisted that to repeat SA’s call for Russia to withdraw from Ukraine would be “simplistic and infantile”. Instead, she may desperately wish she’d been insistent that the call for Russia to withdraw from Ukraine is, and always has been, SA’s position.
• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.
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