Communication blunder: South Africa backtracks on ICC withdrawal

The ANC and its president, Cyril Ramaphosa, have done an about-turn on South Africa’s withdrawal from the International Criminal Court (ICC) in The Hague. 

“The Presidency wishes to clarify that South Africa remains a signatory to the Rome Statute and will continue to campaign for equal and consistent application of international law,” Presidency spokesperson Vincent Magwenya said on Tuesday.

This appears to be a case of miscommunication on the part of government and the ANC, with Ramaphosa and party secretary-general Fikile Mbalula on Tuesday contradicting one another on South Africa’s position on withdrawing its membership of the court. 

During a joint press briefing after a state visit by Finland’s president, Sauli Väinämö Niinistö, at the Union Buildings in Pretoria on Tuesday, Ramaphosa said the country was pulling out because of “unfair treatment” by the ICC.  

“The governing party, the ANC, 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,” said Ramaphosa.

However, Magwenya later said: “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. 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.”  

He said the resolution was reaffirmed at an ANC NEC meeting that took place from April 21 to 24.

“The NEC had also reflected on the potential withdrawal from the ICC as an option that 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.”  

He explained that in remaining a signatory to the Rome Statute, South Africa is guided by the importance of strengthening institutions of global governance.  

“Accordingly, South Africa will work to invigorate the Malabo Protocol that would establish a continental criminal court that would complement the ICC as a court of last resort. 

“Furthermore, South Africa is considering a legislative amendment that would domesticate the Rome Statute so it reflects all the articles of the 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 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. 

The communication blunder comes as South Africa prepares to host the Brics summit in August that Russian President Vladimir Putin is expected to attend.  

As a member of the ICC, South African authorities would be obliged to arrest Putin under a warrant issued by the court in March for alleged war crimes related to the conflict in Ukraine. 

This is not the first time the ICC has put pressure on South Africa to arrest a head of state. In 2015 the country did not comply with the court's warrant of arrest for Sudanese President Omar al-Bashir, despite a local court order compelling his arrest. 

Mbalula earlier told the media that there was a resolution taken to withdraw from the ICC. 

“Conference took a resolution, we just need to implement that ... The domestication of the 'Roman Statute' [sic] in SA means it is the law of the republic. The ICC law is the law of the Republic of SA, we have signed to that. 

“The conference said this ICC does not serve the interests of all, it serves a few. America has not signed, all the big powers have not signed.”  

Mbalula said Putin is coming to South Africa and must be arrested by the country's law-enforcement agencies.  

“Equally, the same ICC does say that no head of state can be arrested in another country, so there is immunity in relation to that, but the domestication of the 'Roman Statute' in our country has even undermined that immunity with [Sudanese] President Omar al-Bashir because somebody went to court and they said arrest him in SA.”

Unfortunately, said Mbalula, Al-Bashir had already left the country when the decision was taken. 

Later the party released a statement intending to clarify the party's position, saying NEC discussions highlighted the “unequal and inconsistent way international law applied, and this includes the often-selective application of the international criminal law”.

“An unintended impression may have been created that a categorical decision for an immediate withdrawal had been taken. This is not so. We reiterate the resolution of conference remains our policy position until such a point where its implementation does not yield the required result.”   

ANC NEC member and deputy minister of public enterprises Obed Bapela told the Sunday Times earlier this month the party’s position on Putin was that no sitting head of state would be arrested in the country. 

The government is seeking legal opinion on the matter.

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