SA Considering Rome Statute

South Africa is contemplating a legislative change aimed at incorporating the provisions of the Rome Statute into its domestic laws. This move has generated controversy due to the planned visit of Russian President Vladimir Putin to the country for a BRICS summit in August.

Justice and Correctional Services Minister Ronald Lamola affirmed that South Africa remains a full member of the International Criminal Court (ICC) and is bound by the rights and obligations outlined in the Rome Statute. These obligations require every state to exercise its criminal jurisdiction over individuals responsible for international crimes, such as genocide, crimes against humanity, war crimes, and crimes of aggression.

The ICC’s jurisdiction comes into play when a state is unable or unwilling to investigate and prosecute such crimes. In the case of Putin, an ICC arrest warrant has caused a diplomatic uproar for South Africa, prompting the establishment of an interministerial committee to explore the government’s legal options regarding Putin’s visit.

As a signatory to the Rome Statute, South Africa is obligated to enforce the arrest warrant issued against Putin. The country is also considering amending its legislation to ensure the full incorporation of the Rome Statute, including Article 98, which requires the waiver of immunities for individuals charged by the ICC from third-party countries, provided there is no referral by the UN Security Council.

Zane Dangor, the director-general of the international relations department, highlighted that this arrest warrant against Putin is the first instance where a warrant has been issued to a third-party state without UN Security Council involvement. Article 98 stipulates that the ICC must obtain a waiver of immunity from a third state before proceeding with a request for surrender.

The ICC can investigate the four core international crimes without consent from the involved states if the Security Council refers the situation. The Security Council’s authority under the UN Charter is the legal basis for the ICC to investigate these crimes without requiring consent.

When the prosecutor initiates an investigation or a situation is referred by a state party, the prosecutor must inform the Security Council and provide a six-month period for the Security Council to determine whether an act of aggression has occurred.

In February 2022, the Security Council failed to adopt a resolution to end Russia’s invasion of Ukraine due to Russia’s veto power. The presidency of the Security Council rotates monthly based on alphabetical order, with February 2022 being Russia’s turn. As one of the five permanent members of the Security Council with veto power, Russia holds considerable influence.

South Africa’s previous administration decided to withdraw from the Rome Statute in October 2016 and officially notified the UN secretary-general of its decision. In January 2017, the AU encouraged member nations to withdraw from the ICC through a resolution, following a decision taken in February 2017. In 2016, two other AU members, Burundi and The Gambia, also expressed their intention to withdraw from the Rome Statute.