EXPLAINER: Why leaving ICC won't solve Putin conundrum

Curlewis says there will be political and economic consequences for South Africa if President Cyril Ramaphosa and the ANC continue to make threats to pull out of the International Criminal Court (ICC) without following the right processes.

Although he has now backtracked, Ramaphosa told the media on Tuesday that the ANC has decided to withdraw South Africa from the ICC, which he said was largely because of the unfair treatment of certain countries.

The ICC last month issued a warrant of arrest against Russian President Vladimir Putin who has been accused of human rights violation over the war in Ukraine.

South Africa will host the leaders of Brazil, Russia, India and China at the 15th BRICS Summit from 22 to 24 August in Durban.

Although it is unclear whether Putin will attend the summit, the ICC warrant of arrest would require South Africa to arrest Putin if he attends the summit.

But Russia is not a member of ICC and it is not yet clear how the warrant will be enforced.

This is not the first time South Africa has threatened to pull out of the court.

In 2016, former President Jacob Zuma wrote to the ICC expressing South Africa's intention to leave the court after refusing to arrest Sudanese President Omar al-Bashir who visited the country for the  African Union summit.

South African authorities refused to arrest him despite the ICC's warrant of arrest issued against him.

But the decision to leave the international court was later overturned after the High Court ruled in favour of the Democratic Alliance, which challenged the government's decision.

Curlewis says even this time, the right legal processes have to be followed if the country wants to pull out of the international court.

"It is one thing to decide to withdraw but there is a process to be followed. The Act that confirms South Africa as a signatory to the ICC must first be properly repealed.

"Once that happens, parliament must then decide by a majority vote that South Africa will not be forming part of the ICC anymore.

"It is not a question of the ANC to decide, they are not on it by themselves, the legislature consists of parliament and parliament also consists of other political parties.

"So they must be a formal debate and then a decision must be taken.

"Once that decision is taken to repeal South Africa's involvement in the ICC, that must be enacted by means of legislation," says Curlewis.

He warns that withdrawing from the ICC would not save South Africa from having to enforce the ICC's warrant.

"We are in May, August is three months away, and the formal process is not going to happen before August.

"So even if the ANC succeed in parliament to make that decision by a majority vote, most of those political opponents are likely to take the matter to the Constitutional Court to decide whether this time they did it properly in contrast with the previous court decision.

"We are not going to have finality on any issue by August, and as long as that is not finalised, South Africa is in contempt of court if they don't arrest him [Vladimir Putin] if he lands in South Africa.

"Then the ICC and the other members of the court can impose serious sanctions and withdraw any trade that they have with South Africa, and the United States of America is South Africa's biggest trade partner in comparison to Russia. It is not gonna work well for us, it is going to jeopardize our already struggling economy even more," he adds.

Curlewis says Ramaphosa's faux pas is likely to have diplomatic impact on South Africa.

"If they persist in this kind of attitude, they are going to have the scrutiny of the world on them even sooner than later.

"Those countries that wanted to do business with South Africa will even be more hesitant.

"One cannot think that our government in this day and age with this economic crisis that we currently live in can say things like this without going through the legal processes."

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