By André Thomashausen
The saga of arresting or not arresting the president of the Russian Federation should he come to South Africa, ended on July 20 with the announcement that an agreement had been reached that President Vladimir Putin would not attend the BRICS summit in Johannesburg in person. He will now participate in the summit virtually while Russia will be represented physically by Foreign Minister Sergey Lavrov.
On Friday, the Gauteng High Court application to force the South African government to undertake to execute an International Criminal Court arrest warrant against Putin was also put to rest. In an out of court settlement between the DA and the government, President Cyril Ramaphosa’s administration accepted the DA’s reasoning entirely and undertook to execute the ICC warrant if ever Putin should come to South Africa. The government even agreed to pay the costs of the DA’s application.
The out-of-court settlement can only be explained as a political move. The South African government clearly was not prepared to risk any further irritation of its Western trading partners.
The turnabout of the Ramaphosa administration cannot detract from the fact that the merits of the DA application were poor. The application had overlooked that the National Prosecuting Authority is independent and that neither “the government” nor “the President” can instruct the NPA to act in any particular manner.
More significantly, the immunity of a head of state has always been absolute and is the oldest universally recognised principle of engagement between nations. The 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, in its Article 2 specifically shields foreign Heads of State against acts that violate their freedom, dignity and property.
It follows that an ICC warrant against a head of state can only be enforced if immunity has been lifted. This will naturally be the case if a head of state represents a member state of the ICC. When that is not the case, scholars agree that only a resolution of the UN Security Council, requesting the ICC to prosecute and arrest, can make up for the lacking consensus of a State that has not submitted to the ICC jurisdiction.
The ICC Treaty (known as the “Rome Statute”) in its often-overlooked Article 97 (3) contains an important general reservation from its jurisdiction. The provision exempts states from executing an ICC warrant if this would “require (it) to breach a pre-existing treaty obligation … “.
South Africa would have acted in breach of its pre-existing international obligations if it had attempted to arrest Putin. The undertaking given by the President in court on July 21 to arrest Putin, is an actual breach of such obligations. It also constitutes what is known in international law as a “hostile act”.
The Rome Statute entered into force on July 1 2002 and currently counts 123 states as members. The largest and most powerful countries of the world did not join: the USA, China, India, Russia, the Middle East, one third of states in Africa, and most of Asia.
The USA’s rejection of the notion of an international jurisdiction over heads of state even went so far as to cause it to legislate that any action of the ICC taken against an American national constitutes a criminal offence. Mike Pompeo on June 11 2020, in his capacity as US Secretary of State, famously declared that the US “won’t be threatened by a kangaroo court”. This did not stop the subsequent Biden administration to threaten South Africa with the discontinuation of the preferential trade agreement known as AGOA, should it refuse to “arrest Putin”.
The ICC is on an annual average of two-thirds of its budget funded by the European Union which makes the EU the dominant stakeholder of the ICC.
As if it was the endeavour of the ICC to punish Africa for having freed itself from European colonial domination during the decolonisation wars, all 47 accused indicted or tried by the ICC since 2008 are from Africa. Only in 2023 did ICC issue the first five warrants against non-African, namely Russian accused persons.
Investigations and charges against gross violations of human rights and war crimes committed in the former Yugoslavia, in Iraq, in Libya, in Afghanistan, in North Korea, in Syria and on the US controlled territory of Guantanamo in Cuba, remain unnoticed by the prosecutor’s office in the ICC.
The few convictions achieved by the ICC over the past 15 years are controversial. They were based on the admission of hearsay evidence, excessively long periods of pre-trial detention and denial of even rights of defence.
The ICC tends to follow the precedents set by the Tokyo International Military Tribunal. The Tokyo IMT applied the harshest possible form of “command responsibility” by sentencing to death by hanging, General Tamoyuki Yamashita, for war crimes committed by troops at the end of WWII with whom General Yamashita had no more communications or means of localisation.
The “Yamashita Standard” was disgracefully revived and relied on by the International Criminal Tribunal for the former Yugoslavia.
The ICC’s prosecution bias is most glaring in the case of Palestine. Israel has never denied or tried to hide its “special military operations” that over decades regularly penetrate deep into the territory of Palestine. Israel accepts Palestine’s independent statehood, but claims that its military incursions are conducted as acts of pre-emptive self-defence, to protect vital security interests.
Palestine evidently rejects the conduct of Israel. However, its demands that Israeli politicians and commanders should be investigated and charged with war crimes and crimes against humanity have not even resulted in the ICC opening a single case file.
In March 2023, a group of 32 UN appointed human rights observers wrote to the ICC prosecutor to protest against “the pervasive impunity and ever-deteriorating human rights situation in the occupied Palestine territory”.
The ICC, by prosecuting selectively, has failed to advance the rule of international law in the world. The ICC warrant against Putin was issued without the requisite support of the UN Security Council and in the knowledge that the immunity of the head of a non-member state cannot not be lifted. It violates the fundamental duty of any international organisation to cherish and protect international peace and security, over and above all other considerations.
South Africa’s acquiescence to the ICC’s overreaching use of its warrant instrument, acting as an extension of the foreign policy of the EU does not bode well for the forthcoming BRICS summit. It turns South Africa into an unreliable partner that has already weakened the BRICS alliance.
André Thomashausen is Professor Emeritus of Comparative and International Law at Unisa.
The views expressed are not necessarily the views of Independent Media or IOL.