Confusion as South Africa backtracks on quitting ICC ahead of potential Putin visit

South Africa says it is considering an amendment to its laws to address the “unfairness” of the International Criminal Court (ICC).

The amendment would domesticate the Rome statute so that it reflects all the articles of the treaty.

This includes the provision of Article 98 of the statute — which requires a waiver of immunity for persons charged by the ICC from third-party countries where there is no referral by the United Nations Security Council. 

Vincent Magwenya, President Cyril Ramaphosa’s spokesperson, made the announcement in a statement issued on Tuesday. 

He said the country will also work to revive the Malabo protocol that would establish a continental criminal court aimed at complementing the ICC as a court of last resort.

Magwenya said South Africa would continue to campaign for equal and consistent application of international law.

He added that although there were discussions to withdraw from the ICC as a last resort, the country was still a signatory to the law.

The presidential spokesperson said the clarification was necessary following his principal’s “regrettable” and “erroneous” comments.

RAMAPHOSA’S ‘ERRONEOUS’ COMMENTS

During a press conference on Tuesday, Ramaphosa had said the African National Congress (ANC), the ruling party, had decided that “it is prudent that South Africa should pull out of the ICC”.

He said the decision was a result of the court’s “unfair treatment” of some countries.

“We would like this matter of unfair treatment to be properly discussed, but in the meantime, the governing party has decided once again that there should be a pull-out,” Ramaphosa said.

Fikile Mbalula, ANC secretary-general, subsequently issued a statement on behalf of the party to counter Ramaphosa.

Mbalula said the country’s withdrawal from the ICC was raised as a measure of last resort that would arise if other options do not yield the desired results of fairness and consistency in the administration of international law.

He said the “unintended impression” that South Africa had made a decision on the matter was wrong.

WHAT THE ICC EXPECTS FROM SOUTH AFRICA

Last month, the ICC issued an arrest warrant for Russian President Vladimir Putin in connection with the war in Ukraine.

As such, South Africa would be required to arrest Putin should he visit the country to attend the BRICS summit in August.

Brazil, Russia, India, China and South Africa make up the BRICS nations.

As a member of BRICS, South Africa shares good relations with Russia, and has not condemned Russia’s actions in Ukraine.

This is not the first time South Africa has found itself in a row over diplomatic requirements.

In 2015, then-Sudanese President Omar al-Bashir visited the country for an African Union summit — and South African authorities refused to act on an ICC arrest warrant for war crimes.