South Africa does not intend to deny Russia. This is what the government has firmly repeated since the International Criminal Court (ICC) issued an arrest warrant for Vladimir Putin on March 17, 2023. “Some do not want us to have relations with an old historical friend Foreign Minister Naledi Pandor said Thursday, March 30, as she welcomed Russian Minister of National Resources and Environment Aleksandr Kozlov. “Yet we have been clear: Russia is a friend […], we cannot suddenly become enemies at the behest of other [countries]. »
This international arrest warrant, a first for a leader of a nuclear power and permanent member of the Security Council, comes at a very bad time for South Africa. Part of the Rome Statute of the ICC, it would be required to arrest Vladimir Putin if he set foot on the territory, which is precisely scheduled for August 2023, on the occasion of the Brics summit which will bring together in South Africa the leaders of China, Russia, Brazil and India.
“One thing is for sure, South Africa is not going to stop Vladimir Putin,” said South African foreign policy analyst Peter Fabricius. Non-aligned and close to Russia due, among other things, to its historical ties with the USSR, the country chose not to take sides in the war in Ukraine, abstaining in the votes of the General Assembly of Nations united on the issue.
So, for several weeks, the government has been consulting legal advisers to find a legal way to circumvent its obligations to the ICC. But, for Angela Mudukuti, an international criminal lawyer, “there is no legal alternative. The law is very clear: South Africa has a duty to arrest individuals wanted by the ICC. Amending the law or getting out of the ICC are all too long procedures to be completed before August. For Peter Fabricius, the most likely scenario remains that South Africa asks Vladimir Putin not to come. “He has discussions to move the summit online or to another country. Vladimir Putin could also send a representative in his place. Solutions that do not please the pro-Russian members of the government. “They perceive this arrest warrant as Western interference. They don’t want to ask Putin not to come, and are worried that it will damage their relations with Russia or with the other members of the Brics. »
But there remains a doubt: what if South Africa repeats its 2015 disobedience? She then hosted Sudanese President Omar al-Bashir, on the occasion of the African Union summit, despite an arrest warrant from the ICC against him.
“It had serious consequences,” recalls Angela Mudukuti, who worked on the case. Indeed, the government then not only contravened its international commitments, it also broke its own legislation, which had incorporated the provisions of the Rome Statute. Noting that Omar al-Bashir was not immediately arrested upon his arrival, the South African justice issued a decision requiring him to be. But the government let Omar al-Bashir leave the country unmolested. “So the government not only ignored the law, but also ignored a court order to arrest the Sudanese president. It was a serious blow to the rule of law. »
The South African government then took the case to the Court of Cassation on the grounds that it could not arrest President al-Bashir due to head of state immunity. Argument rejected: the government’s decision was illegal.
“The government was severely reprimanded by the South African judiciary, and it was a major embarrassment for the ruling party to break the law of their own country,” said Peter Fabricius. After what happened in 2015, the government no longer has any excuse to act like it doesn’t know. »
A second snub to the ICC could also damage relations with Western countries, South Africa’s main trading partners. The European Union, the United States and the United Kingdom thus account for 35.5% of the country’s exports in 2022, according to EU Trade, against a small 0.23% of exports dedicated to Russia. Western investments in South Africa are also disproportionate in comparison to Russian investments. The government’s procrastination poses a risk above all to its trade relations with the United States. While South Africa’s neutrality and its marked friendship with Russia are already making Uncle Sam’s country cringe, the latter could decide to go back on an advantageous trade agreement, Agoa (African Growth and Opportunity Act), if South Africa continued to sink into an increasingly pro-Russian position. The deal, which allows the Rainbow Nation to export billions of dollars worth of goods each year duty-free, could be challenged by a US Congress currently led by Republicans who are unsympathetic to friends of the Russia.
To top it off, an Agoa summit, planned in South Africa just after that of the Brics, is now compromised. Aware of American annoyance, the government sent a delegation to the United States to explain its position and ease tensions.
The arrest warrant revives debates in South Africa around a possible exit from the International Criminal Court, but it is unlikely. Not only would this not be valid from here to the Brics summit, but above all the government has just reaffirmed its link with the institution. While a bill to get out of the ICC had been lying around since the al-Bashir affair, the ANC decided to bury it definitively at its national conference in December 2022. The bill was withdrawn on March 10, just seven days before the arrest warrant for Putin was issued.
However, this does not prevent criticism of the ICC, regularly accused of being selective, by failing to implicate Western countries. “There have been many conflicts around the world and the most powerful countries are often involved. But they are not charged, criticized, and they are not members of the ICC and have not signed the Rome Statute, “denounces in an interview with the South African Sunday Times Naledi Pandor, the Minister of Foreign Affairs. “They are suddenly very involved when it’s Putin that you point the finger at, but if someone was implicated in their country, they wouldn’t accept it. »
123 countries are parties to the Rome Statute of the ICC worldwide. South Africa was the first African country to sign it in 1998 (ratified in 2000). Neither the United States, nor Russia, nor India, nor China have ratified it.
