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The IBA’s response to the situation in Ukraine
South Africa is set to host the BRICS conference in August and has been presented with a dilemma: what to do if the Russian President Vladimir Putin attends. The ICC has issued a warrant of arrest against Putin, who is accused of kidnapping Ukrainian children and transporting them to Russia.
This would oblige South Africa, a member state of the ICC, to arrest Putin, should he attend, and send him to The Hague to face trial. But, South Africa refused to do so in the case of former Sudanese leader Omar Al-Bashir and has accused the ICC of focusing disproportionately on Africa.
South Africa has issued an invitation to Putin who says he will give an answer closer to the time. South Africa’s growing, warm relationship with Russia has caused some consternation among Western allies.
While opinion within South Africa differs, the immediate past president of the IBA, Sternford Moyo of Zimbabwe has issued a strong plea to South Africa to keep to its international obligations and remember its own background. ‘It is our hope and expectation that South Africa will be reminded by its own history of the importance of international cooperation in fighting crimes against humanity,’ he says. ’Its obligations are much more important than its debt of gratitude to Russia arising from support for its liberation struggle. As a friend of Russia, its obligation to call Russia to order and stop violations of the international rule of law and territorial integrity in the Ukraine requires urgent attention.’
Immediate past president of the IBA
Referring to the past episode, Moyo says, ‘President Putin’s possible visit to South Africa threatens a replay of the Omar Al-Bashir saga,’ he says, while South Africa ‘may have been disadvantaged by a lack of appreciation of the full extent of its obligations to International Criminal Justice.’ The country now knows the nature and extent of its obligations. ‘Failure to discharge its obligations to the International Criminal Court would constitute a brazen and contemptuous attitude towards International Criminal Justice and the expectations of its own judiciary. Such an incorrigible attitude would be totally unacceptable,’ he says.
The South African government has sought legal opinion on the matter but has not yet made the findings public. However, speaking in Parliament in early May, Justice Minister Ronald Lamola hinted at the direction South Africa might take by referring to the potential for domestic law allowing exceptions to be made for a matter of national security.
Meanwhile, the South African government is aware of the implications of its closeness to Russia. It sent a delegation to Washington to deal with the potential for losing privileges as one of a group of African countries able to trade with the USA on favourable terms. The US Act - the African Growth and Opportunity Act (Agoa) - is due to expire in 2025 and South Africa could miss out on any further extension, or even being expelled before the renewal date. Coincidentally, AGOA states are due to meet in South Africa in September, though this may be postponed.
The dilemma South Africa faces was thrown into sharp focus with a gaffe made by President Cyril Ramaphosa during the visit of the Norwegian President to South Africa last month. Ramaphosa announced that South Africa was withdrawing from the ICC but was forced later in the evening to withdraw the statement saying it had been an error. During the presidency of Jacob Zuma the South African government drew up a bill before Parliament which would have allowed the Government to withdraw from the ICC. However, earlier this year the Government withdrew the draft legislation.
The South African Government has prompted condemnation in the West over its stance on Russia’s invasion of Ukraine. While saying it is neutral and seeks only peace, it has conducted naval excercises with Russia and China in the Indian Ocean off the South African coast. It also sent envoys to Moscow for military meetings and the ANC (at party level) has visited its counterpart in Moscow.
In 2015, the country hosted the then Sudanese President Omar al-Bashir at an African Union meeting, after the ICC had issued a warrant for his arrest for, among other crimes, genocide. It failed to arrest Al-Bashir and hastily sent him out of the country from a military airport. An attempt had been made to force the arrest through the High Court, which upheld the fact that he should be arrested, but this was not adhered to. The government appealed to the Supreme Court of Appeal and once again lost.
Judge Richard Goldstone, Honorary President of the IBA’s Human Rights Institute, has urged the South African government not to invite Putin and reminded it of its obligation to arrest Putin and send him back to The Hague for trial at the ICC. ‘The commitment of the government of Nelson Mandela to international justice was steadfast and consistent,’ he says. ‘I know this first-hand – it was President Mandela who, in the middle of 1994, left me with no option but to accept an invitation from the United Nations to become the first chief prosecutor of the UN Criminal Tribunal for the former Yugoslavia.’ He had taken up the post and had helped persuade several African countries in the region to join the ICC, which had by then been formed.
Referring to the incident over Al-Bashir, Goldstone says when he was invited by the Zuma administration in 2015 ‘it was in clear contravention of its international law obligations in inviting Al-Bashir and after his arrival in not arresting him and failing to send him to appear in The Hague.’ The Southern African Litigation Centre obtained an urgent order for the government to arrest Al-Bashir but this was ‘evaded…by hastily sending Al-Bashir out of the country from a military air base.’ This order was upheld by the Supreme Court of Appeal.
The condemnation that resulted from this, says Goldstone, lead to the threat by the government that it would leave the ICC and this was strengthened by the opposition to the ICC by the AU in the aftermath of its prosecution of the President and Deputy President of Kenya.
The advocate representing the opposition to the South African Government, Max du Plessis SC, associate member, Doughty Street Chambers, London, says the intention of South Africa to withdraw was a ‘near-miss disaster’. ‘It reflected badly on the judicial and diplomatic handling of the issue by the court and brought back to the fore the sticky issue of the court’s selectivity and the question of immunities for senior officials’ he says. ‘But most importantly, South Africa’s attempt to remove itself from the ICC system was a squandered opportunity to show leadership and to use its influence within the court to help assuage concerns about the work of the ICC and help build a stronger, more credible and more universal sort of court.’