President Cyril Ramaphosa has dropped a bombshell by announcing that the government has decided to push on and pull out of the ICC.
The decision appeared to have been made to pave the way for allowing Russian president Vladimir Putin to attend the BRICS summit in South Africa in August this year.
In March the ICC issued a warrant for Putin’s arrest for alleged complicity in the war crime of abducting Ukrainian children and deporting them to Russia.
As an ICC member, South Africa would have been obliged to arrest Putin and surrender him to the court in The Hague if he came to South Africa.
It is understood that the legal opinion that the Department of International Relations and Cooperation (Dirco) submitted to the Cabinet was that the government would have to arrest him — or risk violating both its treaty obligations to the ICC and South Africa’s own law which has domesticated the Rome Statute of the ICC.
But it now appears that the ANC and the Cabinet have decided to ignore Dirco’s legal opinion and to defy both the ICC and South Africa’s own law.
Because, as 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, then Sudanese President Omar al Bashir when he visited SA in 2015.
Ramaphosa was asked to clarify SA’s position on the ICC at a joint press conference with visiting Finnish President Sauli Ninisto.
He replied that the government had taken the decision that “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.”
Ramaphosa referred to what he said was commentary from Amnesty International that there had been unfair treatment. “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.”
Ironically the legislation for SA to withdraw from the ICC after the Bashir affair had only just been withdrawn from Parliament – after the ANC decided at its December 2022 conference to reverse its decision of 2017 to withdraw from the court.
The legislation to withdraw had been gathering dust in Parliament since it was tabled by former president Jacob Zuma’s administration in December 2017.
It was widely believed that the legislation was never carried forward because Ramaphosa did not believe it was wise to withdraw from the ICC.
Now South Africa’s growing alliance with Putin’s Russia appears to have persuaded the ANC and the government to reverse their position once again.
The decision is likely to have major repercussions on SA’s relations with Western countries already alarmed by its growing relations with Russia.
