While the matter regarding South Africa’s commitment to the arrest of Russian President Vladimir Putin was finalized by agreement between the parties in the Pretoria High Court on 21 July 2023, some questions raised in President Cyril Ramaphosa’s deposition remain unanswered.
These are questions regarding the alleged threat of war linked to the arrest of President Putin, and whether the alleged threat justifies non-compliance with South Africa’s obligations under the Rome Statute.
Against this background, the introduction of a previously mutual friend Southern African Litigation Center (SALC) And International Commission of Jurists (ICJ) Focus on assisting the Court in relevant international law to address the question of whether South Africa’s perception of Russia’s position justifies non-compliance with the Rome Statute.
While a discussion of the merits has been averted by the announcement that the Russian president will not attend the BRICS summit in person this time, this does not mean that questions about the potential threat of war and obligations under the Rome Statute will not be raised again.
Danger of war with Russia?
about Democratic Alliance against the President and othersIn his affidavit, President Ramaphosa highlighted the perceived threat and said:
Russia has made it clear that arresting its current president would be tantamount to declaring war. It would be inconsistent with our constitution to risk going to war with Russia.”
Under international law, a “declaration of war” is defined as a unilateral formal declaration that identifies the specific enemy and the exact point at which war begins. It is not clear how lawful detention under South African and international law can meet the requirements of a “declaration of war”.
The statement also refers to the existence of a concrete threat that Russia considers the arrest of the South African authorities as a declaration of war. While such a threat might also be considered a violation of the prohibition on the use of force under Article 2(4) of the UN Charter, the question is whether and to what extent the alleged threat exists.
In support of this statement, a news article was attached to the President’s report explaining that a high-ranking Russian official made the remarks. However, the statements of the Russian state official A.N Answer On the comments made by the German Minister of Justice.
A few days before the hearing on July 21, 2023, the matter was beyond that mentioned Russia did not tell its BRICS partner, South Africa, that internment meant “war”. Against this background, the state did not substantiate the claims of war threat in its papers, and it remained unclear whether and to what extent such a threat existed.
The issue of the alleged threat is directly related to the question of whether South Africa can be justified in not complying with its obligations under the Rome Statute not to arrest the Russian president.
South Africa justified in breaching its obligations under the Rome Statute?
Where does the alleged threat leave South Africa and its obligations under the Rome Statute to the ICC? Would South Africa be justified in not complying with its obligations under the Rome Statute?
Based on the assumption of a threat of war with Russia, the country appears to indicate in court papers that such a threat may justify a breach of its obligations under the Rome Statute and that the South African constitution requires such behaviour.
First, under international law, as a state party to the Rome Statute, South Africa cannot invoke its domestic law in the form of the constitution to justify its failure to fulfill its obligations under the Rome Statute.
Second, as set forth by the SALC and the ICJ in their joint report, specific situations regulated by international law provide justification or excuse for non-performance under international agreements such as the Rome Statute. Does this mean that South Africa could have been justified in breaching its obligations under the Rome Statute? The short answer is no.
International law recognizes that there may be such cases force majeure or necessity beyond the control of a State or where an immediate danger to the fundamental interests of a State such as South Africa could justify failure to comply with its obligations under the Rome Statute. However, these types of scenarios have strict requirements. For example, a state of necessity under international law requires “grave and imminent danger.
However, the state did not substantiate the claim of an imminent threat or danger that could justify non-compliance. Therefore, South Africa’s breach of its obligations under the Rome Statute in this matter was not justified. This is not to say that such a threat will never be sufficient to absolve a country of its obligations under the Rome Statute.
Fighting impunity is hard work
Threats of force by states are prohibited under international law, and any behavior in this regard must be assessed seriously and carefully. At the same time, such threats should not be used as a cover or an excuse to find an easy solution to a complex and difficult situation. Otherwise, this may open the door to the use of alleged threats to justify non-compliance with international obligations, thus eroding the international criminal justice system.
Fighting impunity and holding perpetrators of international crimes to account is hard work, there is no doubt about that. Many of these situations require states to make difficult decisions that other states may not always commend.
However, such decisions must be taken in line with South Africa’s international law obligations, such as those under the Rome Statute. Too often, this discussion of South Africa’s obligations under the Rome Statute has been dominated by foreign policy reasons.
While foreign policy and international obligations are intertwined, countries must accept that by voluntarily signing an international agreement, they have agreed to be bound by that agreement. Such consent by states is a fundamental basis of international law and why it is binding on states.
In this context, any foreign policy decision must be taken within the framework of those commitments without undermining them. DM