While the matter about South Africa’s obligation to arrest Russia’s president Vladimir Putin was brought to an end by agreement between the parties in the high court of Pretoria on 21 July 2023, some questions that have been raised in President Cyril Ramaphosa’s affidavit remain unanswered.
These are questions that relate to the purported threat of a war linked to the arrest of President Putin, and whether the alleged threat would justify non-compliance with South Africa’s obligations under the Rome Statute.
Against this backdrop, the joint amicus submission by the Southern Africa Litigation Centre (SALC) and International Commission of Jurists (ICJ) focussed on assisting the court with relevant international law to address the issue of whether South Africa’s perception of Russia’s position would justify non-compliance with the Rome Statute.
While a discussion of the merits was avoided by the announcement that the Russian president will not attend the BRICS summit in person this time, it does not mean that questions relating to a potential threat of war and obligations under the Rome Statute will not arise again.
A threat of war with Russia?
In the matter of Democratic Alliance v The President and Others, President Ramaphosa highlighted in his affidavit the perceived threat and stated:
“Russia has made it clear that arresting its sitting President would be a declaration of war. It would be inconsistent with our Constitution to risk engaging in war with Russia.”
Under international law, a “declaration of war” is defined as a unilateral and formal announcement setting out the designated enemy and the exact point when war begins. It is unclear how a lawful arrest under South African and international law could meet the requirements of a “declaration of war”.
The statement further suggests a tangible threat that Russia would consider the arrest by South African authorities as a declaration of war. While such a threat might also qualify as a violation of the prohibition of the threat of force under Article 2(4) of the UN Charter, the question is whether and to what extent the purported threat existed.
In support of this statement, a news article was attached to the President’s submission showing that a senior Russian state official made such statements. However, the statements by the Russian state official were a response to comments made by the German Justice Minister.
A few days before the hearing on 21 July 2023, it was further reported that Russia did not tell its BRICS partner, South Africa, that an arrest would mean “war”. Against this backdrop, the state did not substantiate claims of a threat of war in its papers, and it remained unclear whether and to what extent such a threat existed.
The issue of the purported threat is directly linked to the question of whether South Africa would have been justified in not complying with its obligations under the Rome Statute by not arresting the Russian president.
South Africa justified in breaching its obligations under the Rome Statute?
Where does the purported threat leave South Africa and its obligations under the Rome Statute towards the International Criminal Court? Would South Africa be justified in not complying with its obligations under the Rome Statute?
Based on the assumption that there is a threat of war with Russia, the state seemed to suggest in its court papers that this threat might justify a breach of its obligations under the Rome Statute and that the South African Constitution would require such conduct.
Firstly, under international law, as a State Party to the Rome Statute, South Africa cannot invoke its internal law in the form of the Constitution to justify its failure to perform its obligations under the Rome Statute.
Secondly, as set out by SALC and ICJ in their joint submission, specific situations regulated under international law provide a justification or excuse for non-performance under international agreements like the Rome Statute. Does that mean South Africa would have been justified in breaching its obligations under the Rome Statute? The short answer is no.
International law acknowledges that there might be situations such as force majeure or necessity that are beyond the control of a state or where immediate peril to the essential interests of a state like South Africa could justify not complying with its obligations under the Rome Statute. However, these kinds of scenarios have strict requirements. For instance, the case of necessity under international law requires a “grave and imminent peril”.
However, the state did not substantiate the claim of a threat or imminent peril that could justify non-compliance. Therefore, South Africa would not have been justified to breach its obligations under the Rome Statute in this matter. That does not mean that such a threat would never suffice to excuse a state from performing its obligations under the Rome Statute.
Fighting impunity is hard work
Threats of force by states are prohibited under international law, and any conduct in that regard must be assessed seriously and meticulously. At the same time, such threats should not be used as a cover or excuse to find an easy solution to a complex and challenging situation. Otherwise, this might open the door to use alleged threats to justify non-compliance with international obligations, resulting in an erosion of the international criminal justice regime.
Fighting impunity and holding perpetrators of international crimes accountable is hard work, no doubt about that. Many of these situations require states to make difficult decisions that other states may not always praise.
However, such decisions must be made in line with South Africa’s international law obligations, such as the ones under the Rome Statute. Too many times have reasons of foreign policy dominated this debate around South Africa’s obligations under the Rome Statute.
While foreign policy and international obligations are intertwined, states must accept that by voluntarily signing an international agreement, they have consented to be bound by that agreement. Such consent by states is a core foundation of international law and why it is binding upon states.
In this context, any related foreign policy decision must be conducted within the framework of those obligations without undermining such. DM