The International Criminal Court pits South Africa against Russia

By Gugulethu Hughes 

Editor’s note: The opinions expressed here are those of the authors. View more opinion on ScoonTV. 

The arrest warrant for Vladimir Putin is nothing short of a Western-sponsored mind game. The International Criminal Court (ICC) has made it its mandate to pursue political leaders who dare challenge Western hegemony. The warrant’s timing is a futile attempt to divide and conquer both Russia and South Africa who enjoy key historical ties and are both members of the BRICS bloc. The next BRICS summit, comprising Brazil, Russia, India, China, and South Africa, takes place in August 2023 in South Africa where the leaders of both countries will be representing the interests of a combined 3.2 billion people. 

In issuing the warrant of arrest for Vladimir Putin, the International Criminal Court is being overly overexaggerating its influence. China and India are not signatories to the ICC, for instance. The Russian Federation, just like the United States of America, signed the treaty but never ratified it. Within the BRICS bloc, only South Africa and Brazil are signatories, with the former having contemplated pulling out during President Jacob Zuma’s tenure. 

On a moral level, South Africa is not empowered to arrest Putin. On a political level, South Africa lacks the motivation to arrest Putin. Finally, at a legal level, Russia did not ratify the ICC statute and therefore is not subject to any of its machinations. 

According to the US Council on Foreign Relations, the ICC seeks to investigate and prosecute those responsible for grave offenses such as genocide and war crimes. The court, which came into effect in 2002, has consistently failed to secure the support of superpowers like the United States of America, China, and the Russian Federation on grounds that it undermines national sovereignty. 

Just like Woodrow Wilson was a strong proponent of the League of Nations in 1920, but the USA did not join the organization due to concerns that the League would reduce the United States’ ability to defend its own interests, the Clinton Administration resolved not to ratify the Rome Statute due to concerns about the extent of the ICC’s power.

On May 6th, 2002, the Bush administration announced that the United States wouldn’t become a party to the Rome Statute of the International Criminal Court. In a letter addressed to then-UN Secretary General Kofi Annan, it was unequivocally stated that, “The US does not intend to become party to the treaty and that the US does not have legal obligations arising from its signature on December 31,2000.” Defense Secretary Donald Rumsfeld explained in a press briefing that the Bush Administration had objections about “the lack of adequate checks and balances of the powers of the court’s prosecutors and judges, the dilution of the UN Security Council’s authority over international criminal prosecutions and the lack of any effective mechanisms to prevent politicized prosecutions of American service members and officials.” 

According to the Australian Institute of International Affairs, China’s decision to not ratify the Rome Statute was driven by China’s concerns on how to define core crimes under the Court’s jurisdiction. Apart from genocide, China had reservations over the definitions of all the other core crimes, namely, crimes against humanity, war crimes, and crime of aggression.  

Throughout the negotiation process, one of the major guiding principles in defining the crimes under consideration was that these definitions should be reflective of customary international law. China opposed the ICC’s jurisdiction over crimes against humanity committed during peacetime, because it argued that customary international law required a nexus to armed conflict, and without such nexus, the major attributes of the crimes would be changed. China’s objection towards the ICC’s jurisdiction over war crimes committed in non-international armed conflict was similarly raised in the context of customary international law. Moreover, China resisted the inclusion of the crime of aggression under the ICC’s jurisdiction due to the lack of a precise definition. 

A more condescending take on China’s decision to not ratify the Rome Statute appeared on ResearchGate, where the authors argued that “the reasons for China’s rejection of the Rome Statute are twofold. On the one hand, Chinese leaders have not fully internalized human rights norms, and they prioritize state sovereignty over human rights when making decisions. On the other hand, the legalized Rome Statute sets up an independent court with mandatory jurisdiction and grants the Prosecutor the ex officio right to investigate a crime. Such treaty provisions may have negative impacts on China’s core sovereignty of territorial integration and regime security, thus imposing high sovereignty costs on China. Therefore, China resolutely voted against the Rome Statute, even if such an action made it a small minority outside the international mainstream. These findings indicate that China is still in a weak socialization stage and is not able to take on binding human rights and humanitarian obligations with high sovereignty costs…” 

The Russian Federation signed the Rome Statute in 2000 but never ratified it. In 2016, President Vladimir Putin withdrew Russia’s signature as an act of courtesy since the Federation was already not subject to the statute. The withdrawal of the signature was influenced by the ICC’s decision to characterize Crimea’s referendum to join the Russian Federation as an annexation and territory occupation. 

In 2008, while investigating elements of the Russia-Georgia Conflict, the ICC reached the conclusion that Georgia had not committed any crimes and Russia was the guilty party. 

This decision prompted then Foreign Ministry Spokeswoman, Maria Zakharova, to make the statement that “Russia stood at the origins of the ICC’s founding, voted for its establishment and has always cooperated with the agency. Russia hoped that the ICC will become an important factor in consolidating the rule of law and stability in international relations. Unfortunately, to our mind, this did not happen. In this regard, and in the light of the latest decision, the Russian federation will be forced to fundamentally review its attitude towards the ICC.” The ICC’s attitude on the Georgia Conflict and the Crimea Referendum confirmed Russian fears that the International Criminal Court was a Western political body meant to advance Western aggression towards the Russian Federation. 

India abstained from the vote on adoption of the Rome Statute on grounds that it had qualms with the broad definition of adopted crimes against humanity, the right given to the UN Security Council to refer and delay investigations and bind non state parties, and the use of nuclear weapons and other weapons of mass destruction not being explicitly criminalized.  

The Iraq war, led by George W. Bush and Tony Blair, and the attitudes of the courts in both USA and Britain provides enough precedence showing both the duplicity and limitations of the ICC in pursuing non-member states. In 2018, British High Court Judges Lord Thomas of Cwmgiedd and another senior judge Justice Ouseley ruled that there was no crime of aggression in English law under which the former prime minister Tony Blair could be charged. This decision blocked former Iraqi General Abdulwaheed al-Rabbat’s attempts to institute private prosecution against Tony Blair. 

In the Chilcot Report, the prosecutors of the International Criminal Court stated that they were not going to institute any prosecution proceedings against Tony Blair because the decision to invade was outside the remit of the court even though Britain was a signatory and deposited its instrument of ratification of the Rome Statute on October 4, 2001. The ICC did not even bother to make moves against George W. Bush for war crimes since the USA did not ratify the Rome Statute. The Bush administration went as far as trying to force the Iraqi government to grant it immunity from local laws, and the withdrawal of the US troops only happened after the refusal by Iraqi authorities. The USA uses this strategy in all the other countries where it has waged wars and crimes against humanity such as in Afghanistan. 

In the case of China, the ICC made the decision to not take any action in the case of the Uyghurs. Lawyers for the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM) have submitted a communication to the office of the prosecutor asking for an investigation to be opened against senior Chinese leaders for genocide and crimes against humanity allegedly committed against the Uyghur and other communities. The ICC argued that since China was not party to the Rome Statute, it therefore did not have any jurisdiction to pursue the Chinese for said crimes. 

The evidence is that the ICC is aware of its jurisdiction and limitations and therefore its decision to issue a warrant of arrest for the President of the Russian Federation in light of the upcoming BRICS Summit in South Africa is just an exercise to create unnecessary mistrust between the two countries. The BRICS bloc is unanimous in its suspicions of the ICC being a tool of Western imperialism. The African continent accounts for the highest number of countries that ratified the Rome Statute, and perhaps now is the time for all African countries to withdraw like Burundi did in protest against the ICC targeting Africans for prosecution.  

Former Kenyan President Uhuru Kenyatta and current president William Ruto have been previously dragged to the ICC. African countries must understand their geopolitical and economic influence in the global economy and stop transferring their sovereignty to imperialist political tools. 

The Russian Federation, the Communist Republic of China, and India have enough influence in global politics to protect South Africa in its efforts to uphold and respect international law by ignoring the warrant of arrest for President Vladimir Putin issued by the ICC. 

The International Criminal Court must not blindly venture into the NATO-Russian conflict and risk flouting its own existence, and if it chooses to do so it must begin by prosecuting British (since the country ratified the Rome Statute) politicians for their role in the Iraq war. The ICC could also try pursuing Israel for its ongoing brutalization of Palestinians, and the USA for its widely documented war crimes all over the world. 

As for South African President Cyril Ramaphosa, he has a duty to do what his predecessor President Jacob G. Zuma did when he was pressured to arrest Omar al-Bashir. South Africa must focus on strengthening ties with BRICS bloc countries who offer better economic and social advancement opportunities guided by the principles of mutual respect and collaboration. Those countries that want to take on the Russian Federation must not use South Africa to perform their dirty acts.