Ramaphosa’s Lucky Escape: What Putin’s Cancelled Trip Means for the ICC

In the run-up to the 15th BRICS Summit of heads of state scheduled for August, there has been much consternation in South Africa. As a member of the International Criminal Court (ICC), should Putin have set foot in the country, Pretoria would have been obligated to arrest the Russian leader and send him for trial in the Hague. This follows the ICC’s issuance of a warrant against Putin in March over alleged war crimes in Ukraine.

The warrant’s issuance upended South African preparations for its hosting of the annual Summit of BRICS countries – Brazil, Russia, India, China and South Africa – placing Pretoria in a quandary on how to proceed. Specifically, South Africa was left walking an increasingly difficult line to balance its declared neutrality on the war in Ukraine, the government’s longstanding ties with Moscow and its reliance on top trading partners including the US. Already challenging this balancing act have been allegations that South Africa supplied weapons and ammunition to Russia via a cargo ship linked to a sanctioned Russian company – accusations the government denies.

Various attempts were made to resolve the standoff domestically. In May, in what was described as a strong message to the West, South Africa moved to grant Putin and other BRICS leaders blanket diplomatic immunity to attend the summit.

Nonetheless, the government came under serious pressure, both at home and abroad, to arrest him should he arrive in South Africa as planned. The opposition Democratic Alliance launched a court application to ensure that the government detained the Russian leader and delivered him to the ICC. In doing so, it noted that it was ‘seeking this declaratory order to ensure that there is no legal ambiguity relating to the procedure to be followed’ should Putin arrive in the country.

The matter was finally resolved this week by ‘mutual agreement’ as South African President Cyril Ramaphosa announced that Russia would send Foreign Minister Sergei Lavrov to Pretoria rather than President Putin.

History Repeating?

This is not the first time South Africa has faced this issue. In June 2015, it famously allowed then Sudanese president Omar al-Bashir to attend an African Union (AU) summit despite an ICC arrest warrant on charges of genocide, war crimes and crimes against humanity. In a prominent snub to the ICC, the government declined to detain al-Bashir based on the claim that he was immune from prosecution as head of an AU member state.

The government’s behaviour caused consternation at home and abroad. At home, an emergency order was secured from the High Court ordering al-Bashir’s arrest, following assurances the Sudanese leader was still in the country (he had in fact beaten a hasty retreat). Having failed to obey an order from its own high court, the government’s actions were again condemned when South Africa’s Supreme Court of Appeal ruled the failure to arrest al-Bashir unlawful. Abroad, South Africa was criticised for breaching its domestic and international legal obligations, despite being one in a line of countries to have welcomed al-Bashir since the warrant was issued in 2009.

At that time, relations with Sudan were thinly backed by pan-African sentiment. Today, handling an ICC indictment against the leader of a nuclear-armed UN Security Council member that is de facto at war with the West represents a challenge of a different magnitude.

Yet South Africa and Russia have long-standing relations. Trade with Russia, worth $1 billion a year, makes Moscow the premier trading partner of the African continent as a whole. South Africa is also hoping to cement its place in BRICS as it evolves into BRICS+, an alliance that could counter Western influence and provide the country with greater strategic autonomy. Many South Africans also remember Soviet support for the anti-apartheid struggle. And political and military leaders within the South African Defence Force, the ruling African National Congress, various other political parties and the trade unions all have links of one kind or another to Russia.

But it was President Ramaphosa’s affidavit to the Pretoria High Court following the Democratic Alliance’s challenge last week that best underscored what was at stake. Invoking both national security concerns and the constitution, it stated: ‘South Africa has obvious problems with executing a request to arrest and surrender President Putin ... Russia has made it clear that arresting its sitting president would be a declaration of war’. The affidavit continued: ‘It would be inconsistent with our constitution to risk engaging in war with Russia’.

Since then, Ramaphosa has dodged a diplomatic, if not an actual, bullet. The crisis has been resolved via the least damaging of a set of unpalatable options. Arresting Putin on arrival was never a real option. Even those apt to playing ‘fantasy international justice’ could probably imagine the dire consequences, perhaps short of war, that would have befallen the country in that event. That the decision is presented as consensual suits both parties too. Russia has lost some but not much face – part of its narrative towards the continent is one of a trustworthy, predictable partner that (unlike the West) works with rather than against African states.

Credibility Test

The biggest loser here could prove to be the ICC, whose credibility has eroded slowly over time due to political and procedural missteps. Prominent African voices, for example, have decried the ICC’s perceived targeting of Africa. Others question why convicted war criminals should enjoy five-star facilities while the victims of conflict and underdevelopment suffer.

At times, the ICC has also failed to tread carefully around the tensions between peace and justice, and at others has read the politics wrongly. Cases that led to successful prosecutions clearly had legal merit. But academic analysis casts doubt on the court’s overall value and success rate. Of the thousands of potential cases that could have been investigated, research published in 2020 found that just 45 cases had gone before the ICC and only 44 individuals had been indicted. Only 14 out of the 45 cases had resulted in a complete proceeding, and only nine were convicted.

Yet fundamentally, the ICC has never successfully risen above the challenge faced by international criminal justice amid an anarchic international order. From this perspective, due process and the rule of law only truly operate within the realm of the state, and the ICC’s mission – the pursuit of international criminal law to help put an end to impunity for the perpetrators of the most serious crimes – is at some level a mistaken endeavour. In a competitive international arena, judicial processes will be tolerated by powerful states when non-contentious or gamed selectively against opponents. Putin’s indictment has attracted exactly this critique from the non-mainstream media.

Selectivity has certainly been evident in the ICC’s caseload since its inception, not just between powerful states like the UK and the developing world, but also within continents like Africa. There, governments with sway, like Ethiopia, have somehow evaded ICC scrutiny, despite there being obvious cases to answer. This goes some way to explaining why powerful states like the US and China have never acceded to the court, and why Russia withdrew in 2016. It is in this context that two rival ad hoc tribunals for war crimes in Ukraine are being proposed, one by each side.

Understandably, the ICC is now opening an investigation into reported war crimes by the Sudanese Armed Forces and Rapid Support Forces in today’s Sudan conflict. Yet the 2008 decision to prosecute al-Bashir for reported war crimes, crimes against humanity and genocide in Sudan was and remains contentious. Even for those hopeful of fresh ICC indictments in Sudan, it would be hard, given the mass killings and displacements underway there, for the court’s advocates to claim any deterrent effect.

Unmet Promise

For now, the ICC indictment against Putin remains in place. What happens next could prove a bell-weather for international criminal justice. The Putin indictment will likely move forward, be rescinded or forgotten in line with the direction of the Ukraine war. It is hard to imagine any future talks that involve Russia taking place without bargaining around the case.

Scepticism about the ICC’s foundation and track record is not in itself an argument against post-conflict justice, international law or international human rights. But it is an argument for greater realism, sensitivity to context, and an understanding that international criminal justice will always be political.

In fairness, the ICC is just one of many multilateral institutions now struggling in an age of increasing geopolitical competition, from the UN to the World Trade Organization and the World Health Organization. Yet it promised to deliver something far more ambitious than improved trade or health coordination. With that promise in mind, business as usual should not be an option. At the very least, the ICC needs reform and a fresh dialogue with Africa. If not, historians may one day judge it to have been a judicial bridge too far.

The views expressed in this Commentary are the authors’, and do not represent those of RUSI or any other institution.

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