EDITORIAL: Diplomacy needed in ICC debacle

The government and the governing ANC have spent the past week trying to contain the damage caused by thoughtless comments regarding the decision by the International Criminal Court (ICC) to charge Vladimir Putin, Russia’s president, with war crimes after his invasion of Ukraine.

The decision by the global court to prosecute Putin, who is due to visit SA in August, has put Pretoria in an awkward spot. First, as a signatory of the Rome Statue, the international law that set up the ICC, SA is duty-bound to execute the warrant in terms of its domestic law; second, over time, Africa has grown resentful at what it perceives to be race hunting by the court; and third, SA’s conduct of foreign policy is increasingly being determined by personalities and expediencies instead of principle and national interest.

Faced with the task of arresting Omar al-Bashir, Sudan’s former president, as ordered by our courts, Jacob Zuma’s administration decided to signal — not action — SA’s withdrawal from the world court. Once Zuma, Cyril Ramaphosa’s predecessor, was ousted, the government and ANC decided to stay in the ICC, naively hoping that it would never be asked again to arrest a sitting head of state.

Since the ICC issued the warrant for Putin’s arrest, Pretoria’s position has vacillated between extremes. Soon after the arrest warrant, Pretoria’s stance appeared principled: SA is aware of its international obligations, buying itself time to fudge its next move. Then the position changed from the rational one to seeking legal advice on a straightforward matter: either arresting Putin or asking him to attend the August summit virtually.

This week, the policy incoherence reached its peak. After confirming that the matter of Putin’s arrest warrant had not been discussed by the party’s national executive committee, Fikile Mbalula, the ANC’s secretary-general, made up a position, suggesting that withdrawal was still on the cards. Hours later, Ramaphosa followed the ICC-bashing line.

On Tuesday night, both the ANC and presidency spin machinery went on overdrive, claiming to have been misunderstood: SA’s position, after all, has not changed.

This is a symptom of a government and party exercising policy guided by circumstances instead of principle.

After all, if SA’s withdrawal from the ICC were a matter of principle, the government would have long implemented it by now. So, those who had hoped Ramaphosa’s administration would be guided by principle had better think again.

Besides, a withdrawal from the court is a complex legal process that can take years. It would not exempt SA from acting on Putin’s arrest warrant later this year when he attends the summit of leaders of Brazil, Russia, India, China and SA.

Also, the alternative by African leaders who feel unduly targeted by this international court has not been sufficiently developed. Roughly, the proposal is two-fold: first, establish an African criminal court to prosecute atrocities by African leaders; and second, use the ICC as the court of last resort.

This proposal has been on and off the table of the continent’s leaders without much progress.

To be clear, the ICC is not blameless. Its supporters have failed to get super powers such as the US, members of the EU, Russia and China to sign the Rome Statute. This has left it effectively as a court of the developing world, and the cases that have been investigated and successfully prosecuted have mainly related to African leaders’ crimes. Investigations from other jurisdictions, such as the Middle East, have gone nowhere.

However, the charge of unfairness has not gained traction. After a violent election a decade ago, William Ruto, Kenya’s president, and Uhuru Kenyatta, his predecessor, subjected themselves to The Hague-based international court after being referred by their own country.

Also, the ICC’s prosecutions have stopped impunity of despots on the African continent.

Instead of bashing the court, African governments should persuade their international partners to accede to the Rome Statute. Only then can they shore up this court’s credibility.

As for Ramaphosa, who is presiding over SA’s shrinking global stature, he should by now have learnt that fudging difficult issues has limits. Cases in point include the costly mishandling of the ANC resolutions to expropriate land without compensation and the nationalisation of the SA Reserve Bank.

Only principled diplomacy, not amateurish spinning or multiple legal opinions, will get him out of the Putin quagmire.