Russian President Vladimir Putin (R) and South African President Cyril Ramaphosa (L). (Photo by Mikhail Svetlov/Getty Images)
Democratic Alliance leader John Steenhuisen has filed an application with the Pretoria high court to compel the government to arrest Russia’s President Vladimir Putin should he come for the Brics summit in August.
Steenhuisen filed court papers citing President Cyril Ramaphosa, Justice Minister Ronald Lamola, International Relations Minister Naledi Pandor, Police Minister Bheki Cele and their respective departments’ director generals.
The opposition leader is seeking a court order that would declare the government is duty bound in terms of the Rome Statute and the Implementation of the Rome Statue of the International Criminal Court (ICC) Act to arrest Putin on his arrival in the country and to direct law enforcement to comply with this obligation.
The Rome Statute is the treaty that established the ICC and was adopted at a diplomatic conference in 1998 before coming into force in July 2002.
Steenhuisen argues that South Africa, as a signatory to the statute, is legally obliged to execute an arrest of any person to whom the ICC has issued an arrest warrant.
He says the case law of the ICC and the supreme court of appeal (SCA) is unambiguous that heads of state do not enjoy immunity from arrest or prosecution for international crimes under the Rome Statute or South Africa’s domestic laws.
“The obligation arises immediately once the ICC sends South Africa a request for arrest and surrender. Having issued a warrant, the request to arrest and surrender is, in the circumstances of this case, a mere formality if the ICC believes president Putin will be in South Africa. It will issue a request for South Africa to arrest him and surrender him to the ICC for prosecution,” he said in his court papers.
Steenhuisen challenged the government to advise the court whether an arrest warrant for the Russian president has been issued to it by the ICC.
He argued that the government has only two legal options; that Pretoria ensures Putin does not visit the country while the arrest warrant is still valid or to arrest and surrender him to the ICC if he arrives.
Steenhuisen said he had sought assurances from the government that Putin would either not be invited to the Brics summit or be arrested on arrival, but had received no response.
“Moreover the government’s public pronouncements create a reasonable apprehension that the government intends to act unlawfully. It appears that the government is seeking a mechanism to allow president Putin to attend the Brics summit without arresting him.”
Steenhuisen said this would be a fundamental breach of South Africa’s international obligations and a violation of the country’s domestic laws. It would also cause irreparable damage to South Africa’s hard-earned reputation as a country that respects the rule of law and its international obligation.
Steenhuisen cited occasions when government ministers, the president, ANC secretary general Fikile Mbalula and the director general at international relations department, Zane Dangor, had made statements on the matter but the government had failed to adopt a position.
“It has failed to accept the obvious legal reality that it should disinvite President Putin because if he does come to the republic, the government will have no choice but to arrest and surrender him. The government’s failure to take a clear stance despite unambiguous law and repeated demands indicates that the government wishes to delay the decision for as long as possible,” he said.
“The Russian government seems equally uncertain of South Africa’s position. According to a spokesperson of the Russian government, Russia takes a position that it will take part in the summit to be held in South Africa and that this would be informed by bilateral contacts with the South African government.”
Steenhuisen added that the Russian ambassador to South Africa had stated during an interview that he did not know about any talks between his government and his host country concerning withdrawing an invitation to Putin.
“At present it appears, despite an unambiguous legal position, the South African government has not taken a decision and has not finalised any negotiations with the Russian government,” Steenhuisen said.
He noted the 2015 high court ruling on deposed Sudanese president Omar al-Bashir, against whom the ICC had issued an arrest warrant that South Africa failed to execute. The high court ordered Bashir’s arrest but by then he had already left the country.
In the government’s appeal to the SCA, it argued that Bashir enjoyed immunity from the ICC’s arrest and surrender. The appellate court rejected this argument, ruling that the Rome Statute Implementation Act places South Africa in a vanguard of attempts to prevent international crimes and when they occur the perpetrators must be prosecuted as a matter of national pride.
“The government cannot allow President Putin to attend and not arrest him. Nor can it delay or remain supine in the hope that it will be able to wringle out of its obligations as it did when Omar al-Bashir visited. It is obliged to affirm its legal obligations and state openly that it will comply with them. It has, to date, unreasonably failed to do so. It cannot again allow a domestic constitutional crisis to brew while refusing to take a decision,” Steenhuisen said in his papers.
This comes as Pandor is expected to host Russia’s foreign minister, Sergei Lavrov, during a meeting in Cape Town this week of Brics foreign ministers of Brics, which consists of Brazil, Russia, India, China and South Africa.
The Mail & Guardian previously reported that Lavrov allegedly rejected Pandor’s proposal that Putin attend the Brics summit virtually.
This week Russian news agency Tass reported that Russia had no intention of reneging on its plans to participate in the Brics summit.
“The Russian leader has been invited. Active preparations for the summit are underway. Addressing any issues related to the ICC and so on is the prerogative of our partners [and hosts] in South Africa. The Russian president has not withdrawn his participation in the summit,” Tass quoted a source as saying.
Earlier this month, while addressing parliament’s portfolio committee on international relations, Dangor said that among the legal options explored by South Africa was that the arrest warrant for Putin did not come through the United Nations Security Council.
South Africa’s relationship with the US, a key trade ally, has been strained since Pretoria assumed what it describes as a “non-aligned stance” in the Russian invasion of and war against Ukraine.
This was exacerbated by recent public statements made by US ambassador to South Africa Reuben Brigety that South Africa had sold arms to Russia. Defence Minister Thandi Modise has denied the allegation, while Ramaphosa has appointed a panel to investigate the allegations.
Although Ramaphosa has opted for a more moderate response to the US allegations, he took a firmer position during an Africa Day speech last week telling his allies that South Africa would not be “drawn into a contest between global powers”.