Foreign heads of state wanted by the International Criminal Court (ICC) could in future land in South Africa without fearing that the government will arrest them.
The government is crafting new laws to domesticate the Rome Statute to avoid a future predicament similar to the one it found itself in recently when it had to ask Russian President Vladimir Putin not to attend the Brics summit next month.
Department of international relations and co-operation (Dirco) director-general Zane Dangor said that in the Putin case the government had to comply with a legal opinion that South Africa could not turn a blind eye to the ICC’s warrant of arrest.
“What we are going to focus on is to do what the United Kingdom has done which is to domesticate article 98 of the [statute] very explicitly,” Dangor told the Sunday Times.
President Cyril Ramaphosa and his Russian counterpart this week announced that to save their friendship and not jeopardise the 15th Brics summit next month, Putin would participate virtually. A mutual agreement was reached between the two presidents that Russia would be represented by foreign minister Sergey Lavrov.
Ukrainian ambassador to South Africa Liubov Abravitova welcomed the move, saying it proved that international law still works. “Putin is becoming more and more isolated,” she said.
Ramaphosa is due to meet Putin at the second Russia-Africa summit in St Petersburg next week.
Dangor said: “Because we did not domesticate that element of article 98 of the Rome Statute, our domestic law is very prescriptive, which means that you have to issue a warrant of arrest as soon as you get it.
“If we domesticate article 98, it means that for a third party state such as Russia [which is not a signatory to the Rome Statute and has not been referred to the ICC by the UN Security Council], we will have the same protection for those kinds of heads of state that the UK has. The only thing that we can do really is to change our current act.”
While this does not have a bearing on the predicament Ramaphosa’s administration found itself in, he said the country was saved from the embarrassment it faced in 2015 when the government was taken to court for failing to arrest Sudanese president Omar al-Bashir.
“The difference now is that we were very clear on our legal obligation. We commissioned a legal opinion two days after the provisional warrant of arrest came out, which was very clear that based on our own domestic law you’d have to comply with the request for co-operation.”
Dirco’s head of public diplomacy, Clayson Monyela, revealed this week that Ramaphosa knew in June that Putin was not coming to South Africa.
If we domesticate article 98, it means that for a third party state such as Russia [which is not a signatory to the Rome Statute and has not been referred to the ICC by the UN Security Council], we will have the same protection for those kinds of heads of state that the UK has. The only thing that we can do really is to change our current act
“We have known for a while that President Putin won’t be coming. We just did not make the announcement because certain consultations needed to take place ... When the president was in St Petersburg as part of the African leaders’ peace mission, he had a bilateral with President Putin. So we knew as far as way back then that President Putin wouldn’t be coming.”
Dangor said there was nothing untoward about keeping the information from the public.
“The provisional warrant of arrest came out in March and we are now in July. We knew what we needed to do but we also needed to make sure that we do all the diplomatic work and that takes the longest, consulting other heads of state and countries on why we are doing what we are doing and ensuring that they are fully on board and that they fully understand.”
South Africa needed to explain that its national interests demanded that it comply with international law, Dangor said.
The department, he said, had never been against the information being published.
“The pre-trial chamber insisted that it be confidential. As soon as the warrant of arrest became public, cabinet had meetings and deliberations and [was] told what the legal obligations were and options were then put on the table, none of which included the physical participation of President Putin.”
International relations expert Siphamandla Zondi said if South Africa didn't domesticate the ICC treaty, it would again find itself in the same quagmire.
“It has to decide now how it will handle the matter in future rather than wait until another dilemma. If South Africa had decided firmly after the Bashir situation, it would not have this much drama this time.”
The government’s communication of the matter could have been managed better, he said.
The ANC’s deputy chair of the international relations subcommittee, Obed Bapela, said: “Even though it was a mission impossible to arrest a powerful sitting president, we are happy to have disappointed those who thought the government was not going to comply.
“The ANC has a resolution that now that we have rescinded the decision not to leave the ICC; the NEC resolved in April that we will then go for the amendment of the Rome Statute implementation act of South Africa.”
The DA’s court application to compel the government to arrest Putin if he arrived in the country did not go ahead in the Pretoria high court on Friday, after it emerged that the justice department had already forwarded to the national director of public prosecutions the ICC's arrest warrant for Putin.
The ICC confirmed “all state parties, including the Republic of South Africa, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and request for co-operation”, said the court order.
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