South Africa, Russia, and the International Criminal Court of Justice
By Femi Olugbile
On the 17th of March 2023, the International Criminal Court of Justice issued warrants of arrest for two persons over the war in Ukraine. One of them was Mr Vladimir Vladimirovich Putin, President of the Russian Republic. He was alleged to have been responsible for the war crime of unlawful deportation of children from occupied areas of Ukraine to Russia. Russia, for those who live on another planet, is the rump of the old Union of Soviet Socialist Republics, and the country with the world’s largest arsenal of nuclear weapons.
Technically the announcement made it mandatory for any nation that is a signatory to the Treaty of Rome, which was signed by most of the world’s nations, under the aegis of the United Nations, to arrest Mr Putin, should they find him in their territory.
In another development, the 15th Summit of the BRICS nations is scheduled to be held in South Africa from the 22nd to the 24th of August 2023. BRICS is an acronym for a power block made up of Brazil, Russia, India, and China, and South Africa, representing 3.2 billion out of the world’s population of 8 billion people.
And now comes the rub. South Africa, like virtually all African nations, is a signatory to the Rome Treaty, and would be expected to arrest Mr Putin and convey him for trial at the ICC, should he show up in Johannesburg for the BRICS Summit.
There is high drama in the making. And the issues involved – legal, moral, and political, are not as straightforward as they might seem.
It is instructive to examine the psychology of the decision to issue an international arrest warrant for Vladimir Putin. Do the judges of the ICC expect anyone to be powerful or mad enough to arrest the sitting President of Russia, and bring him in handcuffs to stand trial in the Hague? Of course, there could always be a coup in Russia, and the new strongman could choose to throw his predecessor under the bus.
The International Criminal Court is not to be confused with the International Court of Justice (ICJ), also based in The Hague, Netherlands, which is an organ of the United Nations that adjudicates in disputes between nations, and which was once headed by eminent Nigerian jurist Teslim Olawale Elias, and once served by recently deceased former Attorney-General, Bola Ajibola.
The ICC was established through the Rome Statute in July 1998, and made effective in July 2002. It is an international tribunal and intergovernmental organisation, and the only permanent international court with jurisdiction to prosecute individuals for genocide, war crimes and crimes against humanity. Ad hoc tribunals had previously been set up by the UN Security Council to investigate atrocities committed in the former Yugoslavia and in the Rwanda genocide. It is instructive to note that seven countries voted against the treaty that set up the ICC – China, Iraq, Israel, Libya, Qatar, the USA, and Yemen.
The ICC has eighteen judges drawn from all over the world. It issued its first arrest warrant in 2005. It has indicted several persons, including Joseph Kony of Uganda’s Lord’s Resistance Army, President Omar al-Bashir of Sudan, and even Uhuru Kenyatta of Kenya and Laurent Gbagbo of Cote d’Ivoire, along with Jean-Pierre Bemba of the Democratic Republic of Congo. Indictment is, of course, different from conviction. Ten indicted persons have been convicted so far, including the Congolese rebel leader Thomas Lubanga Dyilo, who was found guilty of war crimes involving the use of child soldiers in 2012.
It is not to be assumed that ICC is universally popular as a symbol of world justice. Apart from countries such as USA and Israel which did not sign the Rome treaty at all, many people worry that it is a tool for advancing and protecting ‘Western’ power and authority in the world. To some Africans, it is eurocentric and even racist in its case selection and procedures, a neo-colonial contraption that could be used to defend Western political and extractive interests in Africa. Most of the indictments made so far have been of African or Third World leaders.
And finally, it is time to shift attention to the Russo-Ukrainian war, and the reason for Putin’s arrest warrant. The BRICS nations, as well as several African countries, are either lukewarm in their support for the western position on the war, or neutral, despite the best efforts of Western governments and media to paint the war as a ‘Good Versus Evil’ battle in which all the saints are ranged on the side of the Ukrainians. The USA and Europe discount the possibility that there could be another side to the story, or even any substance for negotiation and compromise except a ‘defeat’ of Russia. They are arm-twisting African nations through political and economic pressure to toe their line. South Africa, given its history of Apartheid, has an instinctive aversion to toeing the Western line on anything, as expressed by such vocal voices as Julius Malema and his Economic Freedom Fighters. There is even a small population of Ukrainians and Poles among the white population of South Africa who are known for their racist, right-wing antecedents. One of the Poles was Janusz Walus, the recently freed murderer who shot dead anti-Apartheid activist Chris Hani.
What will happen at the BRICS summit in August? Will Putin show up? Though Russia is seen as a friend because of its support during the anti-Apartheid struggle, Putin the person is viewed as a cold-faced bully by many Africans.
The bottom line is that President Ramaphosa will not arrest Putin, or deny him a visa, or do anything that smacks of knuckling under to the Americans, irrespective of the economic pressure on his country. South Africa, with all its short comings, is, after all, a country forged in the furnace of a Liberation Struggle.
It promises to be an interesting battle of wills.