Russian President Vladimir Putin’s possible arrival in SA for the August Brics summit in Johannesburg elicited outrage from opposition parties as the country would be violating its obligations to the International Criminal Court (ICC) after it issued an arrest warrant for war crimes.
However, late on Wednesday the presidency confirmed that Putin would not attend the Brics summit and that Russia will be represented by foreign minister Sergei Lavrov. Here’s a brief history of how SA came to be in this position.
What is the ICC?
The ICC, which came into force in 2002, is based in The Hague in the Netherlands. It investigates and tries people for grave crimes such as genocide and war atrocities. Its authority stems from the international law known as the Rome Statute. SA was the first African country to sign as a member.
It then domesticated the Rome Statute when parliament created the Implementation Act, which gives effect to SA’s obligations in the Rome Statute.
The ICC has issued 10 convictions and four acquittals thus far.
What can the ICC do once it suspects someone?
After an investigation, the ICC can issue an arrest warrant for a suspect it believes has committed a crime, such as war crime. Once the warrant is issued, any one of the 123 signatory member states to the Rome Statute must arrest that person should they enter their country.
Why was there an arrest warrant for Putin?
Russia invaded Ukraine in February 2022, leading to thousands of deaths. Though Ukraine is not a signatory to the Rome Statute, it granted the ICC jurisdiction to investigate suspected war crimes committed in the country.
The ICC concluded that, among other things, crimes had been committed against children, in terms of deportation. It tied the crimes directly to Putin. As a result, it issued a warrant for his arrest in March.
In terms of international law, Gerhard Kemp, professor of international law, told Business Day it does not matter that neither Russia nor Putin recognises the jurisdiction of the ICC. The crimes were done in territory in which the ICC had (temporary) jurisdiction.
Why was this a question for SA?
SA extended the invitation for the summit before the Putin arrest warrant.
SA is a signatory to the Rome Statute and is obliged to arrest Putin. The Supreme Court of Appeal clarified SA’s position on arresting heads of state when a similar situation arose in 2015, when SA failed to arrest then Sudanese president Omar al-Bashir. Al-Bashir was also attending a conference in SA, but fled with assistance from the government in defiance of a high court order. With Putin, SA was again faced with a legal conundrum.
How did SA act?
The government put together an interministerial committee to decide on the way forward. After a few tense weeks, the presidency announced Putin would not be attending the summit.
What did opposition parties do?
The DA instituted legal action that was meant to be heard on Friday seeking a court order to compel SA law enforcement to arrest Putin should he arrive. However, as a result of Putin no longer attending, it is unclear whether the matter will proceed.
Director of the Helen Suzman Foundation Nicole Fritz said: “I think the case is now moot. The relief sought in the matter is predicated on Putin attending the Brics summit. We now know that he won’t be attending.”
Neither the presidency nor the DA have indicated their positions on the way forward for Friday.
Did SA take the right approach?
SA seems to have skirted a major diplomatic headache. “The presidency and department of international relations in particular deserve credit for finding a way through a dilemma that would have taxed any country in the world,” said Fritz.
“An arrest and surrender of Putin to the ICC by SA was never on the cards. Instead, SA needed to find a way of not obviously flouting its obligations to the ICC — both in terms of its Rome Statute commitments and its own domestic law. It has done just that.”
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