South Africa backtracks on president's threat to pull country out of ICC ahead of Putin visit for BRICS summit

South Africa backtracks on president's threat to pull country out of ICC ahead of Putin visit for BRICS summit
Cyril Ramaphosa and Vladimir Putin on the margins of the first Russia-Africa Summit held in Sochi, Russia / South Africa GCIS
By Thulani Mpofu April 26, 2023

South Africa has rescinded a statement by its leader that it plans to withdraw from the International Criminal Court (ICC) ahead of hosting the BRICS summit, which Russia's President Vladimir Putin, wanted by the court for war crimes, would otherwise be expected to attend.  

In a release on Tuesday (April 25), hours after President Cyril Ramaphosa had announced that South Africa would quit the ICC, his office said he “erroneously” affirmed a weekend announcement by his party to rescind an earlier proposal to get the continent’s most-industrialised nation out of the Rome Statute. 

“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,” said presidential spokesperson, Vincent Magwenya in the statement.

“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 back and forth over the country’s membership of the ICC was triggered by the March 2023 decision by the court to issue an arrest warrant for Putin months before he is expected in South Africa for a summit. 

The ICC accuses Putin of a war crime for his role in illegally deporting Ukrainian children to his own country in the midst of their ongoing war, triggered by the Russian invasion in February 2022. 

South Africa will in August host a summit of BRICS, a bloc whose other members are Brazil, Russia, India and China. In terms of the Rome Statute, to which South Africa is a signatory, the government is bound to arrest Putin if he lands in the country and hand him over to the ICC.

At its congress in December 2022, the ANC said it will no longer seek to pull the country out of the ICC. Its top leadership reiterated that position following a meeting over the April  21 to 24 weekend. It issued a statement after the conference which, according to Magwenya, the president may have misconstrued.

"Yes, the governing party, the African National Congress, has taken the decision that it is prudent that South Africa should pull out of the ICC, largely because of the manner in which the ICC has been seen to be dealing with these types of problems, and there's also been commentary, I believe, from Amnesty International on what ... many people believe is unfair treatment, and our view is that we would like this matter of unfair treatment to be properly discussed," the president said earlier Tuesday.

South Africa was criticized in 2015 when it refused to arrest then Sudanese President, Omar Hassan Al-Bashir during his visit for an African summit South Africa hosted.  The ICC had earlier issued a warrant of arrest on him.  The following year, Pretoria attempted to withdraw from the ICC but a court later ruled the bid unconstitutional. 

A local lawyer, Llewellyn Curlewis told the national broadcaster, SABC that even if South Africa had wanted to execute the president’s threat, there is not enough time for the government to effectively do so before the BRICS summit.

“There’s a parliamentary process that must be followed, and even if the ANC is successful in convincing the majority that SA should withdraw from the Rome convention, then the process actually starts,” she said.

“I cannot see with the best of endeavours by the ANC government at this stage that they will be able to finalise all these things before August when this BRICS symposium is supposed to take place.”

Magwenya said quitting 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 government, he added, will seek to play a role in strengthening institutions of global governance and domesticate the Rome Statute to include provisions that allow it to confer immunity on certain individuals even if they are on ICC warrants.

“This includes provision of article 98 of the statute that requires a waiver of immunities for persons charged by the ICC from third party countries where there is no referral by the United Nations Security Council,” he said.

“The manner in which the UK domesticated the Rome Statute to incorporate the provisions of article 98 has been recommended as a guideline case study.”