GovernmentZA/Flickr. Minister of International Relations and Cooperation (DIRCO) Naledi Pandor, 19 March 2024
South African officials have threatened the US and other Western nations with prosecution by the International Criminal Court (ICC) for supporting Israel against the designated terrorist organizations Hamas and Hezbollah. South Africa’s International Relations and Cooperation Minister, Naledi Pandor, made this declaration during a talk about the situation in Rafah, standing in front of a Palestinian flag. It is unusual for a government official to stand in front of the flag of another entity, which is not a recognized country while giving an address. This act alone dispels any pretense of neutrality.
The ICC threat from South Africa is nearly laughable, given that the ICC already has an arrest warrant for Vladimir Putin. However, South Africa not only continues to maintain close ties with Russia as a BRICS partner but has also sidestepped international sanctions by holding joint military exercises with the heavily sanctioned Armed Forces of the Russian Federation.
Signatories to the Rome Statute obligate themselves to enforce ICC arrest warrants. Evidence of South Africa’s lack of commitment to the ICC is that in 2017, South Africa was censured by the ICC for failing to enforce an arrest warrant against Sudanese President Omar al-Bashir, who is wanted on multiple counts of crimes against humanity, war crimes, and genocide. Recently, Pretoria asked the ICC to exempt it from arresting Putin to avoid a war. The country even tried to withdraw from the ICC last spring but is suddenly all-in on deploying the ICC against the United States.
The US is not a signatory to the ICC, and the warrant would hold no validity in the US. Additionally, the American Service-Members’ Protection Act (ASPA) protects US and allied military personnel from the ICC’s jurisdiction. Since Israel is an ally, this protection can extend to diplomatic efforts on its behalf. Furthermore, any country that enforced such a warrant against the US would be guilty of illegal detention and could face severe diplomatic repercussions or potentially trigger a rescue operation, leading to significant casualties in the country detaining high-ranking US officials.
The ICC admitted “the state of Palestine” as a special signatory, which seems impossible because the State of Palestine does not exist. This makes the ICC one of the few international organizations that allows theoretical entities to join. This symbolic move is crucial because, for the ICC to have jurisdiction, either the country accused of a violation or the country where the violation took place must be signatories. Since Israel is not a signatory, the only way the ICC can claim jurisdiction is through the inclusion of the theoretical Palestinian State.
The Palestinian State’s membership status in the ICC is questionable at best and is referred to as a “non-state party observer,” which seems like a contradiction of terms. In January 2015, Palestine acceded to the Rome Statute and became a member of the International Criminal Court (ICC). This status allows Palestine to participate in ICC proceedings and have a say in the court’s operations, despite the contentious nature of its statehood. The ICC’s inclusion of Palestine is one of the many reasons why the US does not support the ICC.
Section 410 of the US Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, “Prohibits U.S. contributions to any affiliated organization of the United Nations or to the United Nations if they grant full membership as a state to a group that does not have internationally recognized attributes of statehood.” This act should be extended to non-UN organizations. Although the ICC did not officially recognize the Palestinian State, the fact that they admitted this entity suggests recognition. As such, Washington should ensure that the ICC receives no funding.
Washington’s rejection of the ICC is so complete that, under Donald Trump, the United States sanctioned the ICC, designating two of its prosecutors. President Biden later revoked these sanctions, but has not signed the Rome Statute, and the US remains outside of the ICC’s jurisdiction.
South Africa’s calls for warrants against the US are completely meaningless, serving only as a symbolic gesture that signals South Africa’s alignment with the China-Russia-Iran camp. To issue such warrants, the UN Security Council would have to agree, which is highly unlikely. Putin and Xi supporting that investigation would be one of the most comedic foreign policy decisions in history, rivaled only by the UN’s decision to put Pakistan, Saudi Arabia, and Libya on the Human Rights Council.
Washington’s response to South Africa’s call for ICC warrants should be to impose sanctions on South Africa for holding joint military exercises with Russia. The US should also launch an investigation to determine if any financial transactions between South Africa and Russia qualify for secondary sanctions. Additionally, the US should cut the $6 billion in aid it gives to South Africa and divert the money to Israel or use it to secure the southern border.
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