After causing an uproar by announcing that South Africa was withdrawing from the International Criminal Court (ICC), President Cyril Ramaphosa issued a statement late on Tuesday that his earlier announcement was wrong and that South Africa would remain in the court.
Read more in Daily Maverick: To Russia with love — South Africa resumes plan to ditch International Criminal Court over ‘unfair treatment’
At an earlier joint press conference with visiting Finnish President Sauli Niinistö on Tuesday, Ramaphosa said the government had decided, “It’s prudent that South Africa should pull out of the ICC largely because of the manner in which the ICC has been dealing with these types of problems.”
This referred to what he called unfair treatment of countries by the ICC — a view which he said had also been taken by Amnesty International.
“And our view is that we would like this matter of unfair treatment to be properly discussed. But in the meantime, the governing party has decided once again that we should pull out. So, that will be a matter that will be taken forward.”
Ramaphosa’s reference to the “governing party” having decided to withdraw from the ICC gave the impression that the ANC had made the decision at its National Executive Committee (NEC) meeting at the weekend. But the NEC had in fact reiterated its decision of last December to rescind its 2017 decision to withdraw from the ICC.
Several hours later, Ramaphosa’s spokesperson, Vincent Magwenya, issued a statement saying: “The Presidency wishes to clarify that South Africa remains a signatory to the Rome Statute and will continue to campaign for equal and consistent application of international law.
“This clarification follows an error in a comment made during a media briefing held by the governing African National Congress (ANC) on South Africa’s status with regard to the ICC. Regrettably, the President erroneously affirmed a similar position during a media session today.
“South Africa remains a signatory to the ICC in line with a resolution of the 55th National Conference of the ANC — held in December 2022 — to rescind an earlier decision to withdraw from the ICC.
“The December resolution was reaffirmed at a meeting of the National Executive Committee (NEC) of the ANC during the weekend of 21 to 24 April 2023. The NEC had also reflected on the potential withdrawal from the ICC as an option that would arise as a measure of last resort in the absence of legal options that would result in fairness and consistency in the administration of international law,” the statement said.
The NEC also issued a clarifying statement late on Tuesday, saying “an unintended impression may have been created that a categorical decision for an immediate withdrawal had been taken. This is not so.”
The prospect of Putin’s visit
Behind all this was the prospect of Russian President Vladimir Putin visiting South Africa in August to attend the BRICS summit. If he did, South Africa as an ICC member would have to arrest him as the ICC has issued a warrant for his arrest for war crimes in Ukraine. South Africa is seeking a way out of that dilemma.
The NEC statement issued on Tuesday night said that the ANC meeting had discussed options to amend the South Africa legislation which domesticates the Rome Statute of the ICC. In effect, this would mean that the ICC would not be able to demand that South Africa arrest and surrender Putin as a sitting head of state. Only if these efforts to amend the legislation failed, would it contemplate withdrawal, the NEC said.
So, its statement does indicate that the ANC and the government are still trying to find ways for Putin to attend the summit, whereas it is believed that a legal opinion that the Department of International Relations and Cooperation (Dirco) has submitted to Cabinet states that SA would have to arrest Putin if he comes to the country — and so he should be advised not to come here.
Helen Suzman Foundation director Nicole Fritz told Daily Maverick it is legally impossible for South Africa to withdraw from the ICC before the BRICS conference in August.
She noted that ICC rules stipulate that an ICC member country remains a member for 12 months after notification of withdrawal. She also noted that withdrawal would require a lengthy parliamentary process — as South Africa’s courts made clear after the government tried to withdraw from the ICC in the wake of the fiasco of failing to arrest another ICC fugitive, the then Sudanese President Omar al-Bashir when he visited SA in 2015.
Fritz said that South African courts had taken a very strong position at that time on the failure of the government to comply with SA’s ICC Implementation Act and would not countenance any violation of the act, which would be likely to happen if SA allowed Putin to visit SA and ignored an ICC request to arrest him.
Another legal expert, who did not want to be named, said that South Africa would have no excuse for allowing Putin to visit SA and not arresting him as the ICC itself and SA’s high court and Supreme Court of Appeal had made these responsibilities absolutely clear when SA failed to arrest Bashir.
Read more in Daily Maverick: The real problem behind South Africa’s refusal to arrest al-Bashir
Fritz suggested that Ramaphosa may have been badly briefed about any NEC decision on the ICC. She tweeted the NEC statement about rescinding the 2017 decision and commented: “Looks like things got lost in translation. The ANC Executive Committee Meeting noted that ‘the ANC & the SA govt must rescind the withdrawal from the ICC Court’. Not withdraw from the ICC.”
Fritz added: “Hope whoever briefed the President gives him a fulsome apology. Diplomatic crises resulting from failure to read the text properly!!” DM