The International Criminal Court and immunity: South Africa’s legal obligations

• Citation: (2022) African Yearbook on International Humanitarian Law 35
• DOI: https://doi.org/10.47348/AYIH/2022/a3
• Published date: 28 May 2024
• Pages: 35-53
• Author: Ramsden, C.A.
• Date: 28 May 2024

35

The International Criminal Court

and immunity: South Africa’s legal

obligations

Chelsea Anne Ramsden*

1 INTRODUCTION

February 2022 marked the invasion of Ukraine by the Russian

Federation (Russia). The instantaneous and vehement reaction from

the international community underscores the gravity of the situation.

Calls for Russian President Vladimir Putin (President Putin) to

immediately halt the invasion and cease the perpetration of senseless

attacks and atrocities against the people of Ukraine resounded across

nearly every corner of the globe.

The invasion has garnered international attention, and there have

been many calls for accountability—for President Putin and for those

under his command who committed these acts on his orders.1 Var ious

organisations and academic circles have already delved into this

query, with suggestions ranging from establishing specialised ad hoc

or hybrid tribunals to prosecuting individuals implicated in crimes

within Ukraine.2

* LLM Internationa l Human Rights Law, Universit y College Dublin; Lega l

Consultant, RSLV Legal. E mail: cramsden@rslv.co.za.

1 ‘Holding Russia Accountable’ European Commission, available at < https://eu-

solidarity-ukraine.ec.europa.eu/holding-russia-accountable_en> (accessed on

1 May 2023); Ofce of the Spokesper son, ‘Supporting Justice a nd Accountability

in Ukraine ’ U.S. Department of St ate (18 February 2023); ‘Uk raine – The

Netherlands Dec laration on Accountabilit y for Ukraine’ Gover nment of

Netherlands (2023), available at ps://www.government.n l/documents/

diplomatic-statements/2023/05/04/ukraine---the-netherlands-declaration-on-

accountability-for-uk raine> (accessed on 4 May 2023).

2 Robbie Gramer, ‘Holding Russia Accountable for War Crimes is Ha rder

than it Looks’ Foreig n Policy (2023), available at ps://foreignpolicy.

com/2023/05/19/ukraine-russia-war-crimes-icc-putin-justice-atrocities-

tribunal/> (accesse d on 6 June 2023); ‘Draft L aw for a Ukrainia n High War

Crimes Cour t’ Public Interna tional Law & Policy Group, avai lable at ps://

stati c1.squ ares pace.c om/st atic/59 00b 58e1b631b ffa3 67167e/t/62d 6c27 baae1

0b6ca51cadb7/1658241661209/DRAFT+Ukraine+High+War+Crimes+Court.

pdf> (accessed on 7 June 202 3); ‘Accountability Mechanisms for War Cr imes

Committed in U kraine’ Public Internatio nal Law & Policy Group (2022) available

at, tps: //static1. squa respa ce.co m/stat ic/590 0b58 e1b631bf fa367167e/t/ 62e

https://doi.org/10.47348/AYIH/2022/a3

(2022) African Yearbook on International Humanitarian Law 35

© Juta and Company (Pty) Ltd

36 AFRICAN YEARBOOK ON INTERNATIONAL HUMANITARIAN LAW

https://doi.org/10.47348/AYIH/2022/a3

This article will avoid this discourse, opting to examine and

evaluate the International Criminal Court’s (ICC) existing and readily

available accountability mechanisms. Its primary focus will be the

starting point of the ICC’s accountability mechanisms, namely those

systems and structures employed by the ICC to attain the cooperation

of other states. This article w ill use the Republic of South Africa (South

Africa), a state party of the ICC that has been k nown to be less than

sympathetic towards the ICC’s calls for assistance in the past, as a case

study to determine the legal obligations owing from the ICC’s arrest

warrant for President Putin.

South Africa’s public policy position of neutrality is well est ablished.

President Putin’s intended visit to South Africa to attend the BRICS

15th Annual Summit provided this article with a prime opportunity to

test the suitability of relying on the ICC as a course of action. While

President Putin’s non-attendance at the event mitigated immediate

repercussions, it underscores the intricate web of international and

domestic obligations facing South Africa in its foreig n policy decisions,

particularly concerning its relations with Russia and allied nations.

Therefore, the situation still provides the opportunity to consider

South Africa’s legal obligations and what they will be in any possible

future visits in relation to the arrest warrant issued by the ICC.

The arrest warrant placed South Africa in an unenviable and

challenging position concerning its international (and domestic)

obligations and foreign policy, including its relationship with Russia

and other allied countries. However, this dilem ma is not novel to

South Africa, which has prev iously grappled with similar quandaries

regarding the arrest and extradition of foreign heads of state, notably

exemplied by the case of Sudanese President Omar Al-Bashir (Al-

Bash ir). 3

This article will commence with a concise contextual over view

of the Ukraine-Russia conict before delving into South Africa’s legal

obligations under the Rome Statute of the International Criminal

a8f98b8f80813fbf76d4a/1659539354094/PILPG+-+Shearman+and+Sterling+-

+Accountability+Modalit ies+-+July20 22.pdf> accesse d 02/05/2023; ‘A

Criminal Trib unal for Aggression in Ukrai ne’ Chatham House (2022), available

at, ://www.chathamhouse.org/events/all/research-event/criminal-

tribunal-ag gression-ukr aine> (accessed on 10 August 202 3); ‘Nations in

Transit 2023: Policy Recom mendations’ Freedom House, available at < https://

freedomhouse.org/report/nations-transit/2023/war-deepens-regional-divide/

policy-recommendation s> (accessed on 7 Octobe r 2023).

3 ‘Al-Bashir c ase: ICC Pre-Trial Chamb er II decides not to refer S outh Africa’s

non-cooperation to the A SP or the UNSC’ (6 July 2017) ICC- CPI_2 070706-

PR1320.

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