South Africa's dilemma: Arrest Putin or Withdraw from ICC?

The International Criminal Court (ICC) issued an arrest warrant in March for Russian President Vladimir Putin charging him with personal responsibility for the kidnapping of Ukrainian children - an act it states amounts to a war crime. 

Coincidentally, Putin is scheduled to attend the 15th BRICS (Brazil, Russia, India, China and South Africa) Summit, a gathering of emerging economies, which South Africa will be hosting in August this year. As a signatory to the Rome Statute of the ICC, the dilemma that South Africa now faces is whether or not to invoke the war crimes arrest warrant and hand the Russian leader over to the Court. 

This has rekindled the longstanding heated political debate about the ICC in the country - and in Africa more broadly - with South African politicians from across the political divide accusing the Court of being inconsistent in deciding which crimes deserve attention.

Accusations of anti-Africa bias

This debate is not new. In 2016, the South African government got flak from the ICC and local courts after it ignored a similar arrest warrant against former Sudanese president Omar al Bashir. This prompted Pretoria to announce that it was pulling out of the ICC. 

But the withdrawal was not seriously pursued, and was finally abandoned just a week before the ICC issued the warrant against Putin, triggering a fresh headache for the government of South Africa from whom the Russian leader had already accepted the August 22-24 BRICS Summit invitation. 

South Africa’s commitment to the ICC has led the country’s ruling African National Congress (ANC) party to insist on a withdrawal from the Court, while President Cyril Ramaphosa’s administration says it hopes to remain and affect changes from within. 

In the past, the Court has been accused of only targeting African states despite human rights abuses taking place regularly in Iraq, Israel, Afghanistan, Saudi Arabia and Yemen, among other countries. Most of the ICC’s high-profile cases have come from Africa and at least five were referred to the court by African states, including the Democratic Republic of Congo, Uganda, Central African Republic and Mali. 

In 2014, Uhuru Kenyatta, then president of Kenya, became the first sitting head of state to appear at the ICC on crimes against humanity charges arising from the East African country’s post-election violence of 2007-2008. Kenya’s current president, William Ruto, who served as Kenyatta’s deputy at the time, was also indicted on the same charges. 

All charges against the two were later dropped on technicalities. 

Sudan’s al Bashir was indicted in 2009 for genocide, war crimes and crimes against humanity that were allegedly committed in Sudan’s Darfur region between 2003 and 2008.

AU’s ICC Withdrawal Strategy

When the ICC was established in 2002, African states signed up with alacrity. 34 of them had joined, making the continent the biggest regional grouping to constitute the Court’s membership. 

But in January 2017, only 15 years after the ICC was created, the African Union’s Assembly of Head of States and Governments published its decision to officially pursue a so-called “ICC withdrawal strategy,” with which it invited all AU member states to abandon the treaty. 

Questions have been raised about what triggered African leaders’ radical change of attitude towards the ICC and whether the AU makes a valid argument when it proclaims that the Court has become a neo-colonial tool of the Western states to control African nations. So far, Burundi has withdrawn from the ICC, while the Gambia and South Africa have made moves to leave.

Charges of bias not supported by facts

Sheriff Olasunkanmi Ibiyemi, a lecturer at the Federal College of Dental Technology and Therapy in Nigeria who has done research on the charges of ICC bias against African states, told FairPlanet that this claim was not factually correct.

“The argument that the ICC is biassed and targets African perpetrators of crimes against humanity has been found to be misleading, since it has been upon the invitation of the ICC that criminals were convicted,” Ibiyemi said. 

“This is because of the fact that some African countries do not have reliable judicial systems and this is the reason why the ICC is usually invited to take charge. On first showing, this would seem that the ICC is centred on Africans. However, a deeper analysis shows otherwise - most of those war criminals indicted in Africa are usually the results of the special invitation by African heads of government.” 

He added that the continuous withdrawal of membership to the Rome Statute and the moves by countries such as the United States and Russia to impede investigations of crimes against humanity, state aggression or war crimes involving them account for the limitations that beset the ICC.

Dr Godfrey Lugano, a lecturer in the department of History, Archaeology & Political Studies at Kenyatta University in Kenya, told FairPlanet that the allegations of the ICC’s bias against Africa are valid only from the standpoint of case selection. 

“Most of the active situations at the ICC are from Africa,” Dr Lugano said. “However, if you go deeper into how the ICC operates, the allegations are misplaced, as African countries’ inabilities to prosecute international crimes invite the Court’s attention, given that many countries in Africa have signed up to the Court’s jurisdiction.”

He added, “The ICC’s intervention in more deserving cases, like in Israel, Syria and Afghanistan, is fought with jurisdictional limitations and superpower politics, both which are not applicable in African countries, the majority of whom are parties to the Rome Statute and occupy peripheral locations in the global political economy.”

‘Eurocentricism - not racism’ 

The curious and disproportionate focus of the Court on Africa, particularly the cases against al-Bashir and Kenyatta, angered African leaders who accused the ICC of racist bias.

However, Awol Kasim Allo, an Ethiopian law lecturer at University of Keele, believes the problem with the ICC is not one of racism, but of Eurocentricism.

“The accusations of simple and overt racism are somewhat exaggerated,” Allo wrote. “They are clearly part of a self-serving ploy by the continent’s abusive leaders who oversaw atrocities of unimaginable magnitude and are seeking a get-out-of-jail-free card.”

He said that it is easier to dismiss the Court’s fight against impunity as a neo-colonial attempt by the West to pursue Africans in the name of justice than for African leaders “to explain their own horrendous and intolerable human rights records.”

“In fact,” he added, “there is something rotten about the very people responsible for overseeing some of the most shocking atrocities against their own people invoking colonialism and racism to avoid responsibility and accountability.” 

He did stress, however, that the disproportionate number of investigations against Africans could simply not be explained away by the sheer scale and magnitude of atrocities in Africa. 

“The point is not that the court is racist, nor is it that it lacks objectivity in the sense that it is biassed against Africa. The point is that the ICC, just like the larger international legal order within which it operates, is Eurocentric and the worldviews, perspectives and standpoints it reflects and embeds are uncompromisingly European. 

International institutions, and the norms, categories, priorities and theories dominant in international law come from a particular place and reflect the stand points of that place.”

Damned either way

While in the past the major gripe against the ICC has been that it is biassed against the African continent, this time South Africa is being made to again agonise over an ICC decision involving a non-African nation, drawing the sympathy of other African states - also ICC members - keen to draw lessons from this case. This is also the first time that the ICC has issued an arrest warrant against a leader of one of the five permanent members of the United Nations Security Council. 

Analysts now say that due to its continued ICC membership, whatever course of action South Africa decides to pursue regarding Putin’s warrant will carry painful consequences. 

According to Hannah Woolaver, associate professor of law at the University of Cape Town in South Africa, the ICC arrest warrant against Putin “matters because South Africa is part of ICC and signed up to the Rome Statute.” This means South Africa has a legal obligation to execute the arrest warrant, she wrote.

“Yet,” she added, “from the perspective of domestic law, there is still room for the government to manoeuvre should it wish to do so. It should also be recognised that by issuing an arrest warrant against a sitting Head of State of a non-party State in the absence of a Security Council referral, the ICC is putting States such as South Africa in a difficult position – both legally and politically.”

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