Cape Town - While South Africa grapples with how to handle the International Criminal Court’s (ICC) warrant of arrest for Russian President Vladimir Putin should he attend the BRICS summit, Justice Minister Ronald Lamola has confirmed that the government is mulling over a legislative amendment that would domesticate the ICC's Rome Statute.
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 was no referral by the United Nations Security Council, he said.
South Africa has recently come under criticism after it gazetted the notice for Diplomatic Immunities and Privileges Act, which Cabinet maintained was a standard practice for international summits held in the country.
The notice was deemed by some as part of measures to ensure Putin would not be arrested when he lands in the country in line with the ICC warrant of arrest. The ICC wants Putin arrested for alleged war crimes in relation to what it claims was an unlawful deportation of children from occupied areas of Ukraine to Russian territory, allegations that the Russian government has denied.
Lamola’s remarks about domesticating the Rome Statute came as Cabinet has yet to decide on whether the BRICS summit will be moved to another country.
IFP MP Mkhuleko Hlengwa asked Lamola whether the government still intended to withdraw from the ICC.
Lamola said the government took a decision in October 2016 to withdraw. He also said the African Union took a decision followed by a resolution issued in February 2017 encouraging member nations to withdraw from the ICC.
Lamola noted that the North Gauteng High Court ruled in February 2017 that the withdrawal notification sent by South Africa to the United Nations was unconstitutional and invalid without prior parliamentary approval. The government was directed to rescind the notice with immediate effect.
“In line with the court decision, the South African government revoked its notice of withdrawal from the Rome Statute in March 2017.”
However, Lamola said numerous developments within the ICC have taken place, including the adoption of the “Understanding with respect to article 97(c) consultations” by the Assembly of State Parties in December 2017.
“This understanding, which was adopted as a result of concerns raised by South Africa, provides for a process for States to consult with the ICC in relation to a request for cooperation.”
He said South Africa was considering a legislative amendment that would domesticate the Rome Statute so that it reflects all the articles of the Rome Statute including the provision of Article 98.
This article states that the ICC may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the court can first obtain the cooperation of that third State for the waiver of the immunity.
Speculation has been mounting that President Cyril Ramaphosa had asked his Chinese counterpart, Xi Jingping during their recent telephone discussion, to host the BRICS summit to avoid the controversy over Putin.
Following last week’s Cabinet meeting, Minister in the Presidency Khumbudzo Ntshavheni denied those reports. Ramaphosa’s spokesperson Vincent Magwenya said at the weekend that the president and Xi discussed their cooperation at BRICS and preparations for the upcoming summit which will be held in Johannesburg in August.
International relations and conflict resolution expert Dr Kingsley Makhubele said although the speculations have been there for quite some time, it hasn’t been helpful that the government has not “unequivocally” said that the summit won’t be moved.
“In my understanding, I believe that the ICC has given South Africa the whole indictment document.
It is however concerning that the government hasn’t been open about its plans as yet. President Ramaphosa did speak to Putin a few days ago, and that might indicate that there is some negotiation going on there.
Should Putin attend virtually whilst other leaders attend physically, that will definitely not look good on Putin himself. If we were to send the summit to other countries it would be a bad move for the SA economy and would cause irreparable harm for the country.
“The warrant of arrest for Putin is as good as a SA warrant and for SA to disregard it will be shooting ourselves in the foot, so it’s a very tricky situation and the government not being open is not helping,” he said.
Surgetower Associates Foreign Policy Specialists director Siseko Maposa said that moving the summit to another country will perhaps get South Africa out of its tricky predicament as China does not have any obligations under the Rome Statute.
“However, if Pretoria does relinquish its opportunity to host the summit, it seems rather momentary and shortsighted to me. What’s evidently clear is that in the face of deteriorating relations between Washington and Moscow, South Africa cannot easily maintain its diplomatic neutrality and may need to consider totally abandoning it,” he said.
Professor John Stremlau from Wits department of international relations said: “I'm glad that SA has prioritised the ICC and is working towards finding some sort of resolution.”
Cape Times