Last week the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin, accusing him of war crimes involving the illegal deportation of children from Ukraine.
SA, as a signatory to the Rome Statute that established the court and its jurisdiction, is legally obliged to arrest Putin and transfer him to The Hague if he sets foot on SA soil.
Recently, international relations & co-operation minister Naledi Pandor confirmed Putin has been invited to attend the 15th Brics summit in SA in August.
All this is concerning in light of SA’s previous failure to comply with an ICC request to arrest former Sudanese president Omar al-Bashir. He was in SA for an AU summit in 2015 but managed to leave SA without being apprehended.
Gerhard Kemp, professor of international criminal law at the University of Derby and previously at Stellenbosch University, notes the warrant came about because “Ukraine accepted the ICC’s jurisdiction”. This means “crimes committed in Ukraine can be tried at the ICC even though Russia is also not a member of the ICC”.
Kemp thinks it likely the prosecutors will add more charges “given the widespread nature of the atrocities committed against civilians, civilian infrastructure and the environment in Ukraine”.
Nicole Fritz, director of the Helen Suzman Foundation, says “given the very high stakes of this particular arrest warrant ... the evidence [supporting the warrant] likely meets more exacting standards [than normal].”
The question, however, is what SA will do. When asked, Pandor said, “We will have to have a discussion in the context of cabinet to decide how we respond”. The government is seeking legal advice.
“SA was an early and strong supporter of the ICC,” says Kemp, “and one of the first countries in Africa to fully incorporate the Rome Statute of the ICC into domestic law.”
But the al-Bashir visit seemed to throw that to the wind. When the ICC lambasted SA for its failure to fulfil its duties under the Rome Statute, Pretoria tried to withdraw from the council, but this was stopped by the SA courts.
Kemp notes the SA government introduced a bill that would have allowed for a legal withdrawal from the ICC. “But this bill was recently withdrawn, and it now seems that SA will stay in the ICC.” Fritz agrees: “This seems a positive development and a recognition that we should continue to engage with and support an institution that we, as SA, were so instrumental in helping found and establish.”
‘Enormous implications’
Of course, the experts agree that no state wants to arrest another head of state. “The implications — diplomatic and economic — are enormous,” says Fritz.
The courts have confirmed SA’s legal obligations to nevertheless make such an arrest. As a result, says Kemp, “it would make sense for SA to [instead] find a diplomatic solution, that is, to ask Putin politely not to attend the Brics summit.” Of course, that seems too late now. SA could also try to find a unique legal argument about why SA cannot arrest Putin on his arrival, but Kemp thinks courts have already pronounced on the issue and are unpersuaded by immunity.
If SA were to not arrest him, says Fritz, “we would very publicly flout our international and constitutional legal obligations”. Further, notes Fritz, the president also cannot guarantee to his Russian counterpart that SA courts won’t exercise their powers and order the execution of the warrant.
Kemp agrees, noting that, even if somehow SA were to leave the Rome Statute, “it will not affect SA’s current obligations which will still be in force when the Brics summit is held in August”.
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