Pretoria said it would comply with the Rome Statute of the International Criminal Court (ICC), which would mean arresting the Hamas and Israeli leaders if warrants for their arrest were granted and they set foot in South Africa.
Read in Daily Maverick: Israel-Palestine War
“We have a legal obligation in terms of fulfilling elements of the Rome Statute and we will discharge that duty when required to do so,” Presidency spokesperson Vincent Magwenya told Daily Maverick.
“We have affirmed our status as a signatory to the Rome Statute and we will continue to campaign for equal and consistent application of international law.”
Pretoria has been reprimanded in the past by the ICC and its own courts after ignoring an ICC request to arrest and surrender the then Sudanese president, Omar al-Bashir, when he visited South Africa for an African Union summit in 2015. Bashir was indicted for genocide, war crimes and crimes against humanity allegedly carried out between 2003 and 2008 in Sudan’s Darfur region.
Vincent Magwenya, spokesperson to President Cyril Ramaphosa. 29 April 2024. (Photo: GCIS)
In 2023, Pretoria faced a repeat of the Bashir incident when Russia’s President Vladimir Putin — accused of war crimes in relation to Russia’s invasion of Ukraine — was scheduled to come to South Africa for a BRICS Summit in Sandton. In the end, Pretoria diplomatically (albeit with some flip-flopping) left the decision to Moscow, and Putin agreed not to attend.
The ICC prosecutor, Karim Khan, on Monday announced that he was seeking warrants of arrest for Hamas’ top brass, as well as Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity in relation to Hamas’ attack on Israel on 7 October and Israel’s retaliatory assault on the Gaza Strip.
The Hamas leaders for whom arrest warrants are sought are its chief in the Gaza Strip, Yahya Sinwar; the commander of its military wing, Mohammed Diab Ibrahim Al-Masri; and the organisation’s political bureau leader, Ismail Haniyeh.
The decision of whether to issue the arrest warrants now rests with the Pre-Trial Chamber 1 of the ICC.
Read more in Daily Maverick: ICC seeks arrest warrants for Israeli PM Benjamin Netanyahu and Hamas leaders – reactions
Pretoria welcomed the ICC prosecutor’s decision to seek arrest warrants for both Israeli and Hamas leaders.
“The law must be applied equally to all in order to uphold the international rule of law, ensure accountability for those that commit heinous crimes and protect the rights of victims. To this end, the Rome Statute is premised on holding those most responsible for atrocity crimes accountable for their conduct,” President Cyril Ramaphosa said in a statement.
South Africa welcomes decision by ICC Prosecutor on the application for arrest warrants for Israel Prime Minister and Defence Minister and three Hamas leaders for alleged war crimes and crimes against humanity within the context of the Gaza conflict. https://t.co/TaCAosNzd8
— The Presidency 🇿🇦 (@PresidencyZA) May 20, 2024
The ICC in The Hague was founded by a multilateral treaty, the Rome Statute. There are 124 states parties to the Rome Statute. Israel is not one of them, but Palestine and South Africa are both signatories and have international obligations to the other state parties.
Notably, South Africa was the first African state to sign the Rome Statute on 17 July 1998 and ratified it on 27 November 2000.
However, Pretoria has for years toyed with the idea of pulling out of the ICC. In 2016, former president Jacob Zuma attempted to withdraw South Africa’s membership of the ICC, following the embarrassing Bashir debacle. However, the high court ruled that the attempt was procedurally unconstitutional and invalid.
Read more in Daily Maverick: Explainer — the ICC arrest warrants for Hamas and Israeli leaders, and how they could play out
Reactions from Western nations
On Wednesday, Norway became the first country in Europe to vow to arrest Netanyahu and the Hamas officials should they set foot in the country.
Norwegian Foreign Minister Espen Barth Eide told Norwegian broadcaster TV2: “If he [Netanyahu] or one of the Hamas leaders who are also indicted should appear in Norway, then we are obliged by international law to do so. The same applies to all countries in Europe with the exception of Turkey.”
Norway, in a historic move together with Ireland and Spain, announced that it would recognise Palestinian statehood. Israel immediately denounced the decisions and recalled its ambassadors to the three European nations, the Associated Press reported.
The three nations join an increasing number of countries which have recognised a Palestinian state amid the ongoing war between Israel and Hamas in the Gaza Strip.
Norwegian ambassador Gjermund Saether. (Photo: Siya Duda/GCIS)
Gjermund Saether, Norway’s ambassador to South Africa, noted that since the Oslo Accords in 1993, (which Norway helped negotiate), “We have obviously been very involved in supporting the Palestinian Authority to help build a Palestinian state. And the idea was always that it should be a two-state solution. And the whole world agreed on that.
“But now, we find that the time has come to also recognise Palestine, because the two-state solution is in danger,” Saether said.
“And it’s not only related to what’s happening in Gaza. It’s also very much related to what’s happening in the West Bank with Israeli annexations of territories, et cetera. So now there is a need for recognition of the Palestinian state that is stronger than before. We used to say that we want the recognition of the State of Palestine to be part of a broader peace agreement. But we cannot wait for a peace agreement.
“And of course, this cannot — in any way — be seen as a support to Hamas and what they are doing. We have been condemning Hamas very clearly from the very start when it attacked Israel on 7 October,” he told Daily Maverick.
In terms of the ICC, Saether said Norway did not want to “take a position” on Khan’s decision but wanted to “protect the ICC”.
“Everybody should respect the mandate. If there is an arrest warrant issued for Prime Minister Netanyahu or for the Hamas leadership — it’s the same thing as the arrest warrant that has been issued for Vladimir Putin — they will be arrested upon arrival in Norway if they set foot there. So we are quite consistent.” DM
