At the risk of adding to the oceans of printer’s ink used on the discussion of the visit of the leader of the opposition to Ukraine, there are three points which have not yet had sufficient attention: the propriety of the visit, the constitutionality of the policy of the South African government towards the situation in Ukraine, and its international law ramifications.
Was it proper for John Steenhuisen to visit Ukraine?
The preamble to the Constitution of South Africa includes these words:
“…establish a society based on democratic values, social justice and fundamental human rights… Build a united and democratic South Africa able to take its place as a sovereign state in the family of nations”.
In turn, the Bill of Rights, in section 7(2) lays down that:
“The state must respect, protect, promote and fulfil the rights in the Bill of Rights.”
In the light of these words and sentiments it is plain that it was proper to visit Ukraine on a fact-finding mission. The security of South Africa is governed by the principle that:
“National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.”
In a context such as appertains now in Ukraine, it is plain that discerning the facts on the ground is a worthwhile exercise for a politician burdened with the various duties and obligations outlined above. A great deal of disinformation, fake news and dissembling is coming out of Ukraine at present. The one side suggests a low-key intervention while the other claims a genocidal war of aggression laced with crimes against humanity. They both can’t be right.
Seeing for oneself is a good way to find out where the truth lies, as truth is all too often one of the first casualties of conflict. Steenhuisen was right to visit Ukraine.
The attitude of the national government in South Africa to the situation in Ukraine is of questionable constitutionality. The obligations on the state to respect human rights and to honour international obligations undertaken in treaties, protocols, statutes like the Rome Statute, and as a consequence of membership of the UN all point toward treating the situation in Ukraine as one in which peace and harmony, for whatever reason, are in short supply and ought not to be if the principles of the security of South Africa are properly observed by its government.
Steenhuisen speaks of the immorality of the stance of the national Cabinet; he ought to be considering the constitutionality of the South Africa policy toward the conflict in Ukraine. Any policy that is inconsistent with the Constitution is invalid and can, on application to the High Court, be struck down if impugned by a well-informed person who has observed the situation on the ground in Ukraine.
Lest we forget, the initial response of the Department of International Relations and Cooperation, Dirco, was impeccably constitutionally pure:
24 February 2022
South African Government calls for a peaceful resolution of the escalating conflict between the Russian Federation and Ukraine
The Republic of South Africa is dismayed at the escalation of the conflict in Ukraine. We regret that the situation has deteriorated despite calls for diplomacy to prevail.
Armed conflict will no doubt result in human suffering and destruction, the effects of which will not only affect Ukraine but also reverberate across the world. No country is immune to the effects of this conflict. As the UN Secretary-General has indicated, the conflict will have a huge impact on the “global economy in a moment when we are emerging from the Covid pandemic and so many developing countries need to have space for the recovery”.
South Africa calls on Russia to immediately withdraw its forces from Ukraine in line with the United Nations Charter, which enjoins all member states to settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.
South Africa emphasises respect for the sovereignty and territorial integrity of states.
As a nation birthed through negotiation, South Africa is always appreciative of the potential dialogue has in averting a crisis and de-escalating conflict. In line with our strong commitment to the peaceful resolution of conflict, South Africa urges all parties to devote increased efforts to diplomacy and to find a solution that will help avert further escalation.
The door of diplomacy should never be closed even as conflict has broken out. We also urge all parties to approach the situation in a spirit of compromise, with all sides respecting international law. In light of the escalating conflict, we call on all parties to resume diplomatic efforts to find a solution to the concerns raised expressed by Russia (sic).
South Africa further calls on all parties to uphold and protect human rights and abide by their obligations in terms of international law and international humanitarian law.
This statement is in stark contrast to a more recent speech given by Foreign Minister Naledi Pandor on 12 May 2022 in which she said:
In 2021, the UN Secretary-General gave the global community new hope when he presented a global vision of inclusive and transformed multilateralism. He proposed adoption of a common agenda for humanity that will see us address climate change, conflict, poverty and insecurity in a manner that promotes inclusion, shared development and equality. He proposed that the United Nations and its institutions would serve as the strategic multilateral body supporting the globe in acting on this common agenda.
The 2021 General Assembly enthusiastically welcomed the Secretary-General’s initiative and committed to his common agenda. We thus began 2022 with renewed hope for the global community.
The Russia and Ukraine war has severely eroded that hope and has divided the world once again and diverted us from the Secretary-General’s common agenda.
Despite our calls for a ceasefire, and for UN-led negotiations, the war rages on, with millions displaced and thousands maimed and dead. We remain steadfast in our belief that war benefits no one and that all efforts should focus on peaceful settlement of disputes.
The United Nations Security Council has failed the world, proving that it cannot be relied upon to preserve peace and security. The ongoing conflict has starkly exposed the inadequacy of the UN system and highlighted the need for serious attention to our repeated calls for substantive reform of the Security Council and indeed, the United Nations. We look forward to working closely with new non-permanent members of the Security Council to urge them to initiate a genuine robust process of reform.
South Africa firmly believes that the Ukraine-Russia war will only be ended through negotiations, and we urge the Secretary-General to lead as the key negotiator to secure a cessation of hospitalities. (sic – no doubt hostilities was the intended word.)
While there is much to be said in favour of the ministerial criticism of the outdated structures of the UN, designed just after World War 2 and now seriously out of kilter with more modern realities, there is not a word of condemnation of the aggressive attitude of Russia in the conflict in the minister’s speech.
It was the late Archbishop Emeritus Desmond Tutu who remarked that a mouse which has an elephant standing on its tail will not thank anyone who remains neutral towards its predicament.
Neutrality implies sympathy for the aggressor. Neutrality on the Ukrainian situation does not accord with the constitutional principles applicable to the framework within which the minister and her government are supposed to operate.
One final point on the international law ramifications of the situation in Ukraine bears mention. Crimea and Donbas have large Russian-speaking populations, some in these minorities of the overall Ukrainian population favour secession from Ukraine and closer ties with the Russian Federation. The doctrine of remedial secession, a highly contested terrain, clashes with the well-established principle of territorial integrity of nation states upon which Dirco initially and very properly relied. Muddled opinions and muddied waters stretch from the Aaland Islands case to the Palestine conundrum. Palestine is recognised by over 100 states and has observer status at the UN. Crimea and Donbas have no such recognition.
If the wish of Minister Pandor for a negotiated solution in Ukraine is to come true, it may involve settling the issues around remedial secession via the International Court of Justice, or the reformed UN, or referenda conducted freely and fairly in the regions seeking remedial secession.
Skilled mediators and international public servants are at the forefront of efforts to end the carnage. They have an extremely difficult task ahead of them, given the politics at play, the unpredictability and inscrutability of the Russian leadership and the nature of the propaganda currently in circulation.
A free and fair referendum cannot be held in a war zone. DM