In 1885 one of the first issues of what would become the South African Law Journal declared: “In this Colony ... no lawyer can afford to be without a sound acquaintance with ... international law.”
Despite comforting myths to the contrary, international law did not arrive in South Africa in 1994, after defeating apartheid; it arrived in 1652 and spent three centuries laying its foundations.
International opposition to apartheid mostly took place in spite of the Western-dominated norms and institutions of international law.
South Africa’s first two international law journals were established in the 1960-70s to defend apartheid, funded by an unholy trinity of white settlers, the apartheid state, and local and international corporations that enabled it.
History teaches us to be wary of those who purvey comforting myths, moral absolutes and legal certainties in the name of international law, particularly when they align with the interests of the reinvigorated West.
Since the ICC issued an arrest warrant for Russian President Vladimir Putin, we have been told by those claiming acquaintance with international law that the law is clear and must take its course.
While there can be little argument about the illegality of Russia’s invasion of Ukraine, the question of Putin’s immunity is less settled, and the ICC’s track record more unsettling than we have been led to believe.
For two decades the question of whether presidents enjoy immunity from arrest by states enforcing ICC warrants has been answered differently by states, courts and commentators.
Some argue the immunity heads of state routinely enjoy under international law doesn’t apply before international courts, and it is illogical to reinstate it for domestic proceedings pursuant to international arrest warrants.
Others argue that domestic and international proceedings remain distinct so, regardless of whether they enjoy immunity before international courts, presidents continue to enjoy such immunity from arrest by states unless that immunity is waived.
Most adopt a moderate position, arguing that presidential immunity applies before international courts but is waived by consent when states sign up to the ICC.
For them, the warrant against former Sudanese president Omar al-Bashir presented difficulties because Sudan had not signed the Rome Statute but found itself before the ICC through a UN Security Council referral. Most commentators concluded that the referral itself removed Al-Bashir’s immunity.
The Putin arrest warrant is the hardest of cases: Russia has not signed the Rome Statute and the conflict with Ukraine has not been referred to the ICC by the Security Council
The Putin arrest warrant is the hardest of cases: Russia has not signed the Rome Statute and the conflict with Ukraine has not been referred to the ICC by the Security Council.
This inevitably complicates the Al-Bashir precedent, where that referral was the silver bullet.
The more immediate complication is that the Supreme Court of Appeal (SCA) raised these immunity debates in the Al-Bashir case but decided they were mostly irrelevant as domestic law overrode any immunity from arrest under international law (which it found Al-Bashir did in fact enjoy).
The SCA’s conclusion was that South Africa was obliged under international law to grant al-Bashir immunity but under domestic law to arrest him.
In the Al-Bashir case it was a neat fix to complex but largely moot legal questions (with the legal and political safeguard of the Security Council).
In the present matter it effectively compels the government to possibly violate its international legal obligations in order to meet its domestic ones. It also opens the door for the government to simply amend domestic law to recognise head of state immunity, to bring it into line with the SCA’s account of its international legal obligations.
Amid the histrionics about potential ICC withdrawal, little attention has been paid to the government’s claims that the ICC’s application of international law has been “unequal”, “inconsistent” and “often selective”. This is a mistake.
The ICC has two serious distinct but related problems. The first is the over-representation of Africans before the ICC, which has spent two decades and $2bn (R37bn) trying to prove that the most serious crimes of concern to the international community are committed almost exclusively by Africans.
Until last year, all 47 individuals indicted or tried by the ICC were from Africa; the five arrest warrants issued since then have all been for Russian nationals or associates.
The second problem concerns Western impunity: three investigations implicating the West — concerning Iraq, Afghanistan and Palestine — have languished on the ICC’s books for more than a decade.
In the past three years the prosecutor’s office has formally closed the first; effectively closed the second (insofar as crimes committed by the West are concerned); and stonewalled the third.
In 2006 the prosecutor refused to investigate international crimes in Iraq because they weren’t sufficiently “grave”.
The prosecutor later revisited that decision and in 2020 reversed it, deciding there was a “reasonable basis to believe” that UK forces had committed numerous war crimes in Iraq since 2003. Nevertheless, the prosecutor decided not to pursue prosecutions because of the UK’s efforts to provide justice for these crimes domestically.
Those efforts, according to the Prosecutor: over 3600 complaints received, over a decade of investigations, and ‘not one single case being submitted for prosecution’.
Two months later the UK was rewarded for its commitment to justice by having its nominee for ICC prosecutor elected by secret ballot.
Karim Khan was nominated for his legal qualifications and “political antennae”, and swiftly put the latter to work by announcing that he would abandon (or “deprioritise”) investigations into crimes committed by the West in Afghanistan.
What has gone missing in the 'fog of law' is any serious discussion of what it might mean to arrest a president in the middle of a war, possibly in violation of international law
The prosecutor’s justifications were two-fold. The first was the comparative “gravity, scale and continuing nature of the alleged crimes by the Taliban and the Islamic State”, as opposed to Western actors.
Since 2001 more than 176,000 people have been “killed directly in the violence of the US” in Afghanistan, including over 46,000 civilians, according to a Brown University study.
The second was a shortage of resources — and courage, one suspects, since for Russia’s invasion of Ukraine the prosecutor seems to have found both in abundance.
The prosecutor has not yet made a single statement concerning Palestine, self-referred to the ICC in 2009 and again in 2015. Last month 32 UN-appointed, independent human rights experts took the extraordinary step of writing to the prosecutor expressing concern about “the pervasive impunity and ever-deteriorating human rights situation in the occupied Palestinian territory”.
They argued that since the ICC’s investigation began many new violations had been committed, imploring him to proceed urgently.
What has gone missing in the “fog of law” is any serious discussion of what it might mean to arrest a president in the middle of a war, possibly in violation of international law. It seems inconceivable, but everything about war is inconceivable, until it happens.
If it did, the consequences would be dire for South Africa, and possibly for the victims of the war itself as the path from Putin’s arrest to a sustainable peace is far from clear — Libya and Sudan, whose presidents were both subjects of ICC warrants, do not augur well.
What is clear is that the prevailing over-hysterical and under-historical accounts — which pit a clueless, feckless and lawless government against a virtuous cause, court and West — are not only simplistic and naïve, they are reckless.
• Gevers teaches in the School of Law at the University of KwaZulu-Natal
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.