An analysis of the responsibility to enforce International Criminal Court warrants of arrest against alleged perpetrators of international crimes from a South African context

Abstract

This study focuses on the enforceability of International Criminal Court (ICC) arrest warrants by member states. The prosecutor of the ICC has the power to prosecute certain crimes committed by individual actors within the international community. Genocide is a crime under international law, and crimes of this nature are prosecuted by the ICC, when committed by member states against other states. The facts from the Russian war against Ukraine, and other regions underpin this study. This war resulted in the deaths of many Ukrainians, thus potentially amounting to genocide under international law. The ICC issued a warrant of arrest for President Putin, who to date has not been arrested. South Africa was expected to arrest President Putin if he visited the country, and this remains the expectation. The ICC’s prosecutors also applied for the issuing of warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and Hamas's leader in Gaza, Yahya Sinwar, which puts member states under an obligation to enforce the warrant. The application for the warrant against Prime Minister Netanyahu was made as a result of alleged genocide committed against the Palestinian people in Gaza. Both Russia and Israel are known to have strong military forces, which other member states like South Africa do not possess. The question arises whether member states with inferior military forces can enforce ICC arrest warrants against these powerful state leaders. Questions about the enforcement of ICC warrants also arise when considering global and regional economic and political alliances, such as the BRICS alliance, comprising Brazil, Russia, India, China, and South Africa, among others. The study argues that while inferior member states are under an obligation to enforce ICC warrants of arrest, there will always be an inherent fear of starting a war with member states such as Russia and Israel, who are in possession of powerful military forces, which complicates the enforcement of ICC warrants. The study also analyses the enforcement of ICC warrants in the context of global and regional political and economic alliances. A considered conclusion on the enforceability of ICC warrants in the above-mentioned contexts will be made at the end.