The commitment of the Government of President Nelson Mandela to international justice was steadfast and consistent. I know this first hand – it was President Mandela who, in the middle of 1994, left me with no option but to accept an invitation from the United Nations to become the first chief prosecutor of the United Nations International Criminal Tribunal for the former Yugoslavia.

The Secretary-General of the United Nations, Boutros Boutros-Ghali had approached President Mandela to agree to my nomination. The appointment had become urgent and controversial as Russia had vetoed the appointment by the Security Council of any national of a NATO country. 

There was also other politics at play, and for some 15 months during 1993 and 1994, the Security Council had been unable to make an appointment. President Mandela informed me that having regard to the role played by the United Nations in bringing Apartheid to an end, he was of the strong view that South Africa should agree to the request that he had received from the Secretary-General.

In the middle 1990s, South Africa also joined the so-called ‘like-minded nations’, led by Canada, in leading the project to establish the International Criminal Court (ICC). After the Rome Statute for the ICC was agreed by 120 nations in Rome in July 1998, South Africa held diplomatic meetings in Pretoria to encourage other SADC nations to ratify the Rome Statute. 

At the request of President Mandela, I participated in those meetings. They were highly successful and played an important role in persuading many SADC members to join the ICC.

On 4 March 2009 and 12 July 2010 the ICC issued arrest warrants against President al-Bashir for crimes allegedly committed by him in the Darfur region of Sudan. He was alleged to have personal responsibility for the commission of genocide, war crimes and crimes against humanity. More than 300,000 people lost their lives and over two million were forced to flee their homes.

All nations that ratify the Rome Statute become members of the Assembly of States Parties and are obliged to respect and execute orders made, and requests issued, by the Court. It was in that context that the Zuma Administration, in 2015, unlawfully embarrassed our country by inviting former President al-Bashir of Sudan to attend an African Union meeting in Pretoria. 

South Africa was in clear contravention of its international law obligations in inviting al-Bashir to our shores and, after his arrival, in not arresting him and failing to send him to appear before the ICC in The Hague. The South African Litigation Centre was successful in obtaining an urgent order of the High Court ordering the arrest of Al-Bashir. The Government evaded the order by hastily sending al-Bashir out of the country from a military air force base. 

The order of the High Court was subsequently upheld by the Supreme Court of Appeal. In 2019 President al-Bashir was ousted by a military coup. He was found guilty of corruption-related charges at the end of 2019 and sentenced to two years in a reform facility, He is now facing charges relating to the 1989 coup that brought him to power. It appears unlikely that he will stand trial in The Hague.

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The international condemnation of South Africa’s conduct in failing to arrest al-Bashir led to the threat from the Government that it would withdraw its ratification of the Rome Statute. That stance was strengthened by the opposition to the ICC of the African Union in the aftermath of its prosecution for war crimes by the then future President and Deputy President of Kenya, Uhuru Kenyatta and William Ruto. There were allegations that the ICC was biased against Africa and that this explained why the first nine situations before the Court related to African states. That stance reflected the perception rather than the substance of the ICC’s work at that time. Only two of the cases against African states had been initiated by the Prosecutor. Three had been referred to the ICC by African governments themselves and two had been referred to the Court by the Security Council of the United Nations. 

In the result, Burundi was the only African state to withdraw from the ICC. Since then the ICC has brought cases against a number of non-African states and the opposition from the AU and its members has softened. Indeed, only this week, the draft legislation which provided for South Africa’s withdrawal from the Rome Statute was withdrawn.

On Friday, the ICC issued an arrest warrant against President Vladimir Putin for war crimes committed in Ukraine since February 2022. The charges relate to the deportation and transfer of children from Ukraine to Russia. That conduct, not surprisingly, is a serious war crime defined in the Rome Statute. It is alleged that “Mr. Putin bears individual criminal responsibility” for the alleged crimes, for having committed them directly with others, and for “his failure to exercise control properly over civilian and military subordinates who committed the acts.” I have no doubt that other serious charges of war crimes and crimes against humanity will follow. The evidence points strongly to wilful attacks by Russian forces against the civilian population of Ukraine including the intentional targeting of many hospital and medical facilities.

In light of the arrest warrant issued against President Putin,  our Government should under no circumstances invite him to attend the BRICS meeting scheduled to be held in Pretoria in August of this year. An invitation by a member state of the ICC to a head of state subject to an arrest warrant issued by the ICC would clearly be unlawful under both international and South African law. If he were to accept the invitation and arrive in South Africa, the authorities would be under a legal obligation to arrest him and send him for trial to The Hague. The law in this regard has been clearly set out by the Supreme Court of Appeal in the al-Bashir case. 

If the Government, in the face of the foregoing history, does send an invitation to President Putin, it should anticipate that the invitation will be impugned by our Courts prior to his arrival in South Africa. Regardless of the merits of South Africa’s “neutrality” with regard to the Russian invasion of Ukraine, it is in the interests of South Africa and indeed of President Putin that he should on no account be invited to visit our country. DM

Richard Goldstone is a South African former judge.