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Mail & Guardian
16 May 2023
By Dr. Atilla Kisla, International Justice Cluster Lead at the Southern Africa Litigation Centre (SALC)

Typing in “South Africa” and “ICC” into a Google search results in the following two questions under the section for “People asked…”:

  1. Is South Africa still part of the ICC?
  2. Has South Africa withdrawn from the ICC?

While depending on the individual search history, such results might vary, it is symbolic of the current State of affairs if we speak about South Africa and ICC. A simple Google search illustrates how confused the public and, most likely, even people in power are about this relationship. To answer the question: South Africa is still a member of the International Criminal Court (ICC). However, the relationship between the ICC and South Africa has certainly suffered over the past years since the Al-Bashir incident. The intent to withdraw and the withdrawal from the withdrawal have created a climate of uncertainty. The statement of President Ramaphosa to pull out from the ICC, maybe an honest mistake, maybe a reflection of his true feelings about the Court in The Hague, was clarified by a statement by the Presidency and the ANC. What stood out in both clarifications after the President’s statement, is the reference to Article 98 of the Rome Statute. However, what is the meaning of Article 98 and can it actually assist South Africa in situations like the upcoming visit by the Russian President? The question is further whether South Africa can translate the interest of States in the Ukraine matter into a more sustainable dedication to fighting impunity for international crimes.

Article 98 of the Rome Statute: Non-surrender agreements and competing Immunity obligations  

While Article 27 of the Rome Statute regulates that head-of-state immunity does not pose a bar to prosecuting perpetrators of crimes under the ICC’s jurisdiction, Article 98 addresses the issue of whether the Court can proceed with a request for surrender or assistance if there are competing immunity obligations between the requested State and the third State. Translating the legalese to the Putin situation, South Africa is the requested State, and Russia is the third State. Article 98(1) reads as follows:

The Court 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 […] of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

The second paragraph of Article 98 uses a similar wording but speaks of “obligations under international agreements”, which refers to bilateral agreements between two states. One motive behind Article 98 is to protect ICC member states and not put them in a position where they would be violating existing international law obligations. However, Article 98 does not provide State Parties to the ICC with the right to decline a surrender or assistance request by the Court. It rather limits the Court’s capability to proceed with a request for surrender or assistance. If there would be an immunity agreement or obligation between South Africa and Russia that protects the Russian president and/or explicitly states that Russian state officials cannot be transferred or surrendered to the ICC, such agreements would technically fall under Article 98. However, that would not automatically mean that the ICC has reached the end of the road. The Court could seek a waiver from states like Russia, even though there is only a minimal likelihood of states granting such a waiver. Another scenario could be that the ICC proceeds with a request to surrender or arrest, despite Article 98 and without seeking a waiver. However, it cannot be overemphasised that this last option might raise serious questions about the rule of law, which might be damaging to the credibility of the Court.

The use of Article 98 agreements in practice

States entering into Article 98 agreements are nothing new. A state that has frequently used such bilateral agreements and is not a State Party to the ICC is the U.S., which is also the State that has pushed for the implementation of Article 98(2). Accordingly, the website of the U.S. Department of State lists 93 of such agreements, which the U.S. has concluded with states all over the world. Usually, such agreements contain a provision that states that “no person of the United States of America […] may be surrendered or transferred by any means to the International Criminal Court”. In this context, it is rather surprising and ironic that the U.S. ambassador to South Africa stated in a press conference on 11 May 2023 the following with respect to South Africa’s hesitation on the issue of Putin’s visit:

As we look at this situation from a distance, we do not understand what is there is to debate about. The legal precedent [Al-Bashir case] seemed to be clear and multitudinous and so we don’t understand why the Government of South Africa will not publicly and fulsomely commit to the obligations that it has voluntarily taken upon itself.

As it has been argued elsewhere before, the Al-Bashir situation is not a blueprint for the visit of the Russian President. In the Al-Bashir matter, it has been argued that the UNSC resolution 1593 made Sudan a quasi-member state of the ICC which enabled the direct application of Article 27 of the Rome Statute. In the Putin situation, there is no UNSC resolution. As the South African jurisprudence and jurisprudence by the ICC are not entirely settled on the issue, one could ask that if one were to apply Article 27 again, what the purpose of Article 98 is if it does not find any application in such situations. One would further have to raise the question of why states like the U.S. have concluded more than 90 of these non-surrender agreements with States, including State Parties to the ICC, if such agreements do not apply with respect to any surrender or assistance requests by the ICC.

South Africa’s Plan to change domestic regulation

The Presidency and the ANC statements further suggested changes in the domestic regulation implementing the Rome Statute, namely the ICC Implementation Act (ICC Act). In an interview from 11 May 2023, the ANC Secretary General stated that “this matter will be before our Parliament very soon”. However, before the government starts to amend the ICC Act, it should be conscious of what is possible under its domestic regulation and where the limitations in terms of the Rome Statute are. As set out above, Article 98 limits the capacity of the Court and does not grant member States a veto to a request for surrender or assistance. If South Africa were to implement a provision in the ICC Act that would grant South Africa a right to decline assistance in case of head of state immunity, one could argue that such an interpretation would be beyond the scope of Article 98. Therefore, such an interpretation would not be in accordance with the Rome Statute or international law on the interpretation of such multilateral agreements.

The instrumentalisation of international criminal justice? Risks and Opportunities  

Undoubtedly, the upcoming BRICS summit and the ICC arrest warrant are putting immense pressure on the South African government. To a certain degree, the pressure built up is also a product of South Africa’s indecisiveness and uncertain relationship with the ICC. While the government seems to wait for a legal opinion on the matter of the Russian President’s visit, it should not wait too long as international partners might interpret it as hesitation or insecurity, which might be even more detrimental to South Africa. While the interest and engagement of states seeking accountability for crimes in Ukraine must be welcomed, some might consider this sudden strong interest in accountability as an instrumentalisation of the ICC and the international criminal justice system. There is no doubt that perpetrators of international crimes must be held accountable, no matter which positions they hold.

Due to heightened geopolitical interests in the conflict, this case has created situations that have not been there before. Never before has the ICC received state referrals from 39 State Parties to look into a situation in another country. Never before have we seen so many states seriously engaging with the subject matter of international criminal law. Never before have investigations at the ICC amounted so quickly in an arrest warrant. By no means are these developments adverse. However, the pursuit of international justice cannot end with only one situation. It needs to go beyond the situation in Ukraine and translate to any occurrence of international crimes. Otherwise, the ICC and the paradigm of international criminal justice run the risk of being instrumentalised for political reasons, which will impact their credibility in the long run. Therefore, stakeholders such as South Africa should use this opportunity that has been created and use the precedent by the ICC to push for expedited and determined investigations and prosecutions of other situations like the ones in Palestine or Afghanistan.