Russian President Vladimir Putin and President Cyril Ramaphosa. (Sergei Chirikov/AFP)
South Africa is duty-bound to arrest and surrender Russian President Vladimir Putin, should he come to the country for a Brics summit in August, but chances of that happening are very low.
President Cyril Ramaphosa’s government has drawn criticism over its “neutral” stance in refusing to condemn Russia’s war against Ukraine, and its loyalty to its fellow Brics member has come back under the spotlight after the International Criminal Court (ICC) issued an arrest warrant for Putin.
Pretoria was hammered when it breached the stipulations of both the local judiciary and the Rome Statute — to which South Africa is a signatory — in 2015 when it failed to detain and surrender Omar Hassan al-Bashir, who was then president of Sudan, an ICC fugitive, to The Hague in the Netherlands.
According to Torie Pretorius, the former head of the Priority Litigation Crimes Unit in the National Prosecuting Authority (NPA), South Africa has “an obligation … to arrest and surrender — not extradite — President Putin” if he should land on its shores.
Pretorius referenced the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, through which, he told the Mail & Guardian, South Africa had made the choice to not give immunity to heads of state, in similar fashion to the Rome Statute.
Ramaphosa’s spokesperson Vincent Magwenya told the M&G that the state was “aware of our legal obligation in terms of the statute”.
“We will be in consultation with all relevant stakeholders on the modalities of the Brics summit.”
The department of international relations and cooperation was also cognisant of its responsibilities, spokesperson Clayson Monyela said.
“As a signatory to the Rome Statute, [South Africa] has obligations that we’re fully aware of.
“This is also because of our own domestic law and customary international law. The supreme court of appeal’s ruling on the former president of Sudan matter is instructive,” he said.
The NPA would uphold its independent stance should the issue arise and would at the “right time if so required … be guided” by its legal mandate under relevant national and international laws, spokesperson Mthunzi Mhaga told the M&G.
But South Africa failed to fulfil those obligations in 2015.
Al-Bashir was indicted by the ICC for war crimes, crimes against humanity and genocide against some of the tribes of Sudan’s western Darfur region.
As a signatory to the Rome Statute, South Africa was legally obligated to arrest him, but then president Jacob Zuma defied the statute as well as a local high court ruling by refusing to arrest Al-Bashir.
In 2017, the government defended its decision, submitting to the ICC that South Africa’s situation was “a lot more complex” and, under international law, Al-Bashir had immunity in foreign states.
“It was a multilevel conflict between disparate legal rules, both international and domestic, with political interest thrown in as garnish,” then department of international relations special legal adviser Dire Tladi argued.
Pretorius said that Tladi’s argument could not be disregarded as the matter was indeed complex, because of the “intricate overlap” of customary international law, South Africa’s obligations towards the African Union and its ICC membership.
Tladi acknowledged in 2017 that, under the Rome Statute, ICC members had a duty to arrest and surrender Al-Bashir but added that under UN Security Council Resolution 1593, there was no obligation on member states to cooperate in relation to Al-Bashir.
In a move last week that went largely under the radar, parliament announced the withdrawal of the International Crimes Bill tabled in 2016 to repeal South Africa’s membership of the ICC.
The bill had been formulated in reflection of the country’s reluctance to arrest Al-Bashir. No reasons were given for the proposed bill being scrapped.
In the Russian case, the ICC issued warrants of arrest for Putin and his commissioner for children’s rights Maria Alekseyevna Lvova-Belova on 17 March for their alleged role in transferring children from Ukraine to Russia.
“There are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children,” the ICC said in a statement.
Both Human Rights Watch and the UN Independent International Commission of Inquiry on Ukraine found similar evidence of human rights violations concerning the transfer of Ukrainian children to Russia.
According to the UN’s independent commission, witnesses claimed “many of the younger children transferred were not able to establish contact with their families and might lose contact with them indefinitely”, adding that a delay in the repatriation of civilians from Russia “may also amount to a war crime”.
Russia’s ambassador to the UN, Vassily Nebenzia, nullified the ICC’s warrant of arrests because of its non-membership of the court, telling a UN news conference on Monday: “The decision of the ICC is absolutely null and void for us. ICC simply demonstrated that it went to new lows for which it had been heading already for a long time.”
Referring to the children, Nebenzia claimed Russia wanted to “spare them the danger”, given the military situation in Ukraine.
Asked if Russia would return the children, he responded: “When conditions are safe, of course.
Why not?”
Russia is expected to elaborate on the situation of the Ukrainian children before a UN Security Council informal forum next month.
Pretorius was hopeful that South Africa’s dilemma would be resolved through diplomatic means, telling the M&G: “The South African solution usually is, ‘There is an invitation but please don’t attend.’”
In 2017, Tladi cited examples where Al-Bashir had been requested not to honour invitations to South African events, including Zuma’s two inaugurations, the 2010 Soccer World Cup and the funeral of Nelson Mandela in 2013.
However, this did not stop Al-Bashir from attending the African Union summit in South Africa in June 2015.
The Russian Embassy in Pretoria could not confirm to the M&G if Putin would attend the 22 to 24 August Brics summit.
Monyela said, traditionally, the department of international relations and cooperation doesn’t “invite Brics countries to a Brics summit. They come.”