South Africa’s obligations pursuant to the issuing of an arrest warrant for Mr Vladimir Vladimirovich Putin
On 17 March 2023, the Pre-Chamber of the International Criminal Court (“the Court”) issued arrest warrants in relation to two individuals:
- Mr Vladimir Vladimirovich Putin (President of the Russian Federation), and
- Ms Maria Alekseyevna Lvova-Belova (Commissioner for Children’s Rights in the Office of the President of the Russian Federation).
The arrest warrants were issued, pursuant to the continued hostiles between the Russian Federation and the Ukraine, and on the basis of evidence collected and analysed, and that there appeared to be reasonable grounds to believe that President Putin and Ms Lvov-Belova bear criminal responsibility for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation, contrary to article 8(2)(a)(vii) and article 8(2)(b)(viii) of the Rome Statute.
Furthermore, it is alleged that at the time of these deportations, the Ukrainian children were protected under the Fourth Geneva Convention.
From 22 to 24 August 2023, South Africa shall be hosting the 15th BRICS Summit in Johannesburg, to be attended by the Heads of State of the participating member States, including President Putin. As a consequence hereof, the South African Government published in the Gazette of 29 May 2023, a Notice No. 3472, in terms of Section 6(2) of the Diplomatic Immunities and Privileges Act No. 37 of 2001 (“the Immunities Act”) affording the participants of the Summit the immunities and privileges provided for in the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of Specialised Agencies, as may be applicable and for their effective participation in the Summit.
As President Putin has indicated that he shall be attending the 15th BRICS Summit in person, is South Africa obligated to arrest President Putin once he lands on South African territory, in terms of the arrest warrant issued by the Court?
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
The Rome Statute of 17 July 1998 established a permanent International Criminal Court (“the Court”) with the power to exercise its jurisdiction over persons for the most serious crimes of international concerns and shall be complementary to national criminal jurisdictions.
The Rome Statute was open for signature by all States, and is subject to the ratification, acceptance or approval by signatory States.
The Court was established in 2002, and is located in the Hague, Netherlands.
THE RUSSIAN FEDERATION AND THE ROME STATUTE
The Russian Federation was a signatory of the Rome Statute, however the Rome Statute was not ratified by the State Duma and the Federation Council.
The Russian Federation withdraw its signature of the Rome Statute in 2016.
In terms of Article 34 of the Vienna Convention on the Law of Treaties, a treaty such as the Rome Statute cannot impose obligations on states that are not parties to the treaty and have not consented to the imposition of such obligations.
The Court has previously recognised this difficulty and in the ordinary course the only means of avoiding the difficulty is by invoking Article 98 of the Rome Statute, which provides for the Court to secure the cooperation of the third-party state (in this case, the Russian Federation) in waiving immunity and giving consent for the surrender of President Putin. But given that President Putin is the Head of State it is obvious at a practical level that it would not be forthcoming.
UKRAINE AND THE ROME STATUTE
Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory.
The first declaration lodged by the Ukraine from 21 November 2013 to 22 February 2014, and the second declaration extended the first declaration for an open-ended basis to encompass ongoing alleged crimes committed from 20 February 2014 onwards.
SOUTH AFRICA AND THE ROME STATUTE
South Africa signed the Rome Statute on 17 July 1998 and deposited its instrument of ratification of the Rome Statute on 27 November 2000.
Parliament adopted the Rome Statute Implementation Act No. 27 of 2002 which came into effect on 16 August 2002 (“the Implementation Act”).
South Africa has not ratified the Kampala Amendments to the Rome Statute of 2010, it has not signed the Agreement on Privileges and Immunities of the Court, and it has publicly rejected the Bilateral Non-Surrender Agreement.
On 19 October 2016, South Africa formal lodged its notice of intention to withdraw from the Rome Statute, however on 07 March 2017, and before the withdrawal came into effect, it rescinded its withdrawal. The reason for its withdrawal was as a result of the Democratic Alliance challenging the withdrawal in the High Court and being granted an Order directing the withdrawal was not legal.
In 2019 a Bill was brought before Parliament to formally withdraw South Africa from the Rome Statute, however this was withdrawn in March 2023.
SOUTH AFRICA’S OBLIGATION
The Rome Statute states that countries are obliged to arrest and surrender a person sought by the Court. Article 89 of the Rome Statute provides that a state, faced with a request to arrest and surrender a person, ‘shall ... comply with requests for arrest and surrender’. The statute also provides directives for how a state should deal with competing requests for the arrest and surrender of a person, as well as the procedural modalities for giving effect to the obligation to arrest and surrender.
In terms of article 86 of the Rome Statute, State parties shall ‘cooperate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the court’.
In terms of the Implementation Act, where the Director-General: Justice and Constitutional Development (Advocate Doctor Mashabane) receives a request from the Court for the provisional arrest of a person who is suspected or accused of having committed a crime, the Director-General must immediately forward the request to the National Director to apply, under oath, to a Magistrate for a warrant of arrest for that person. The arrested person is then brought before a Magistrate for an inquiry.
However in this instance, the person refers to President Putin, a Head of State and in terms of the Immunities Act, he is immune from the criminal and civil jurisdiction of the South African Courts, and enjoys such privileges as heads of state enjoy in accordance with the rules of customary international law; are provided for in any agreement entered into with a state or government whereby immunities and privileges are conferred upon such a head of state; or may be conferred on such head of state by virtue of section 7 (2) of Immunities Act.
Section 7(2) allows the Minister to, in any particular case if it is not expedient to enter into an agreement as contemplated in subsection (1) and if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette. No such notice has yet to be published in the Gazette.
SOUTH AFRICA’S PREVIOUS CONDUCT
In 2009 and 2010 the Court issued warrants of arrest for Sudanese President Omar Al-Bashir following his indictment for crimes against humanity and genocide committed in Darfur, Sudan between 2003 and 2005.
In June 2015, President al-Bashir attended the 25th ordinary session of the Assembly of the African Union (AU) hosted in South Africa. Because of South Africa’s accession to the Rome Statute of the International Criminal Court, South Africa was obligated to have President al-Bashir arrested.
When President Al Bashir arrived in South Africa the Government took no steps to arrest him. It adopted, and continues to adopt, the stance that it was obliged not to do so as President Al Bashir enjoyed immunity from such arrest. Its failure to arrest President Al-Bashir resulted in the South African Litigation Centre (SALC), bringing an urgent application on Sunday 14 June 2015, in the Gauteng Division of the High Court, Pretoria, seeking orders declaring the failure to take steps to arrest President Al Bashir to be in breach of the Constitution and to compel the Government to cause President Al Bashir to be arrested and surrendered to the ICC to stand trial pursuant to the two warrants.
The Government opposed the urgent application and sought and obtained a postponement until 11.30 am on Monday, 15 June 2015 to enable affidavits to be prepared. But there was an obvious concern that President Al Bashir might leave the country in the interim in order to escape arrest. Accordingly, in granting the postponement, the High Court made the following order:
‘1. President Omar Al Bashir of Sudan is prohibited from leaving the Republic of South Africa until a final order is made in this application, and the respondents are directed to take all necessary steps to prevent him from doing so;
- The eighth respondent, the Director-General of Home Affairs is ordered:
2.1 to effect service of this order on the official in charge of each and every point of entry into, and exit from, the Republic; and
2.2 once he has done so to provide the applicant with proof of such service, identifying the name of the person on whom the order was served at each point of entry and exit.’
At the hearing the following day before a specially constituted full court of three judges presided over by Judge President Mlambo, it stood down further because the affidavits were not yet ready. The hearing commenced at about 1.00 pm and the Court sought the assurance from counsel then leading for the Government, Mr W Mokhari SC, that President Al Bashir was still in the country. He informed the Court that according to his instructions President Al Bashir was still in the country and this was repeated during the course of the argument. At about 3.00pm the Court made the following order:
‘1. That the conduct of the Respondents to the extent that they have failed to take steps to arrest and/or detain the President of the Republic of Sudan Omar Hassan Ahmad Al Bashir (President Bashir), is inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid;
- That the respondents are forthwith compelled to take all reasonable steps to prepare to arrest President Bashir without a warrant in terms of section 40(1)(k) of the Criminal Procedure Act 51 of 1977 and detain him, pending a formal request for his surrender from the International Criminal Court’.
Immediately after the above Order was made Counsel for the Government told the Court that President Al Bashir had left the country earlier that day. According to an affidavit later filed by the Director-General: Home Affairs, he appears to have left on a flight from Waterkloof Air Base at about 11.30 am that morning. The affidavit failed to explain how a Head of State, using a military air base reserved for the use of dignitaries, could possibly have left the country unobserved.
The South Africa Government’s argument to refute the claim that it was obligated to arrest President Al Bashir, was that President Al Bashir had been invited to attend by the African Union and not by the South African Government. In terms of Article VIII of the hosting agreement, which was headed ‘Privileges and Immunities’, and read:
‘The Government shall afford the members of the Commission and Staff Members, delegates and other representatives of Inter-Governmental Organisations attending the Meetings the privileges and immunities set forth in Sections C and D, Article V and VI of the General Convention on the Privileges and Immunities of the OAU.’
Furthermore, it was argued that on 5 June 2015, and pursuant to section 5(3) of the Immunities Act, the Minister of International Relations and Cooperation, published GN 470 in the Government Gazette recognising the hosting agreement for the purposes of granting the immunities and privileges as provided for in Article VIII, which was annexed to the notice.
THE SUPREME COURT OF APPEAL JUDGMENT
The Supreme Court of Appeal, in an Appeal by the South African Government of the aforesaid Orders, found that it is the purpose of the Implementation Act to provide a framework to ensure the effective implementation of the Rome Statute and to ensure that South Africa conforms to its obligations under the Rome Statute.
It held that there is no doubt that South Africa was obligated to endeavour to bring President Al Bashir before the Court for trial, and that the Head of State immunity claimed for him is only a procedural bar to the enforcement of that obligation. It is not an immunity that confers impunity for any wrongdoing on his part.
The Implementation Act provides for the arrest of persons accused of international crimes and their surrender to the Court and for cooperation between South Africa and the Court. As appears from the preamble where the point is made that ‘millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law’. As a result of this and South Africa’s own painful past the Republic of South Africa is committed to:
‘bringing persons who commit such atrocities to justice, either in a Court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International Criminal Court, created by and functioning in terms of the said Statute; and carrying out its other obligations in terms of the said Statute’.
The relevant provisions of the Implementation Act must be read and construed in the light of this commitment, which as the Constitutional Court has pointed out, is constitutionally mandated. The first is s 4(2) which provides:
‘(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person— (a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or (b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither— (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.’
On the issue of there been two conflicting pieces of legislation, the Supreme Court of Appeal has held that the Immunities Act continues to govern the question of Head of State immunity, but the Implementation Act excludes such immunity in relation to international crimes and the obligations of South Africa to the Court, and that the Implementation Act enjoys priority.
Accordingly, South Africa being a signatory of the Rome Statute and having ratified it, is obligated in terms of legislation to give effected to any arrest warrant issued by the Court and to arrest President Putin should be attend the BRICS Summit in Johannesburg.