President Cyril Ramaphosa and Russian President Vladimir Putin. (Mikhail Svetlov/Getty Images)
If the government heeded an international warrant of arrest for Russia’s President Vladimir Putin, this would be read by Moscow as a declaration of war, President Cyril Ramaphosa said in papers filed to the high court.
“I must highlight, of the sake of transparency, that South Africa has obvious problems with executing a request to arrest and surrender President Putin,” Ramaphosa said in an affidavit filed in response to an application by the Democratic Alliance [DA] to compel the state to arrest Putin if he attended the Brics summit in Johannesburg in August.
“Russia has made it clear that arresting its sitting president would be a declaration of war.”
The president said South Africa had no wish or capacity to find itself at war with Russia, and noted that the International Criminal Court of (ICC), which issued the warrant in March, has expressed concern over “Russia’s nuclear threat”.
“It would be inconsistent with our constitution to risk engaging in war with Russia. I have constitutional obligations to protect the national sovereignty, peace and security of the republic, and to respect, protect, promote and fulfil the rights of the people of the republic to life, safety and security.”
It would also scupper efforts by a group of African presidents, himself included, to negotiate an end to the war in Ukraine, which Russia invaded in February last year
“An arrest of President Putin would introduce a new complication that would foreclose any peaceful solution.”
He said the DA was misguided in criticising this stance as being in conflict with South Africa’s legal obligations.
“If anything, South Africa is enjoined, given its unique experience with crimes against humanity and atrocities, to contribute to the international community by showing it that forgiveness, reconciliation and peace (rather than retaliation and retribution) are a constructive path to overcoming international atrocities and restoring international peace.”
South Africa was also entitled to raise concerns it had in terms of article 98 of the Rome Statute, the founding Act of the ICC.
This section states that a member state cannot be compelled to flout the diplomatic immunity of a citizen of another state, unless the court can prevail upon said state to waive the immunity, and he had been advised by experts that it is relevant to South Africa’s dilemma, Ramaphosa said.
Furthermore, the DA’s application was mistakenly founded on an absolutist approach to the Rome Statute and the ICC Act, which domesticated it into South African law, whereas they in fact set out a “a sensible framework that provides remedies for states in the position that South Africa finds itself in”.
It is understood that Ramaphosa will seek a pragmatic way out of the international relations nightmare the Brics summit and the warrant has become for the government by trying to dissuade Putin from attending when they meet at the Russia-Africa forum in Saint Petersburg at the end of this month.
This will see the president taking the advice of an inter-ministerial committee, which last month reported to the cabinet that neither section 98 or 97 of the statute helped South Africa to get around the obligation to arrest Putin.
The DA is seeking a declaratory order that if Putin arrived in South Africa to attend the summit, the government was obliged in terms of the Rome Statute to take all necessary steps to detain him and surrender him to the ICC, in line with a request from the court to give effect to the warrant.
It seeks a second, accompanying declaratory order that the director general of the justice department must immediately, upon receipt of the request, forward it to a magistrate to ensure effect was given to it.
The president countered that the obligation has not arisen, but would only do so if Putin came to South Africa.
“Cabinet has determined that the Brics summit will be held in a manner that ensures
South Africa abides by its international and legal obligations. Discussions are being held to ensure that this takes place. An order cannot be granted on a speculative basis as the DA wishes.”
There was a fundamental, and fatal, flaw in the DA’s application in that it assumed that once the ICC issued a warrant of arrest, South Africa was obliged to make clear its intention to arrest Putin if he were to come here, Ramaphosa argued.
“The government knows its obligations. It sees no need to announce these publicly. South Africa is obliged to treat as confidential how it intends to process the warrant or the ICC request.”
He added that the government has conveyed to ICC the difficulty it faces in complying with a request to execute the warrant, which alleges that Putin is responsible for the war crime of deporting Ukrainian children to Russia.
“It is also important to bear in mind that the republic has initiated article 97 proceedings with the ICC. In those proceedings, the government has indicated that there are problems which impede or prevent the execution of the warrant of arrest issued against President Putin.”
Ramaphosa said he could not disclose the content of these discussions.
The president’s affidavit was filed on a confidential basis last month, with his office saying this was in line with an ICC requirement to keep requests for cooperation confidential.
The DA initially accepted this, but reserved the right to challenge confidentiality once it had received the affidavit. It then proceeded to plead that confidentiality should be lifted. In an order handed down on Tuesday, the Pretoria high court agreed and the affidavit became a public document.
It also sees Ramaphosa argue that the relief the DA wants is incompetent for vagueness, first because the DA asked for an order against the government, rather than the relevant authority that bears the responsibility for ensuring compliance with the request.
Similarly, he added, the phrase “all necessary steps” was too vague, and the DA should instead have spelled out “who bears what obligation under the Act”.
Reaching for another technicality, the president argued that the government is not cited as a direct respondent in the matter, and therefore cannot be placed under an obligation by the court to do anything.
And because the warrant of arrest is provisional, it does not fall within the ambit of section 8 of the ICC Act, but rather section 9, which refers to the obligations of the national director of public prosecutions, he added. The NDPP is not party to the court proceedings, and therefore “no competent order can be made against her”.
The DA said the four preliminary objections raised by the president were meritless, and meant to obfuscate and delay.
“They are a masked attempt to avoid accepting that the government bears the domestic obligation to arrest President Putin if he were to enter South Africa and to immediately take the necessary steps to ensure that he will be arrested were he to enter South Africa.
“Their ambivalent and contradictory posture necessitated this application … By failing to give even this court a clear answer, the government necessitated the need for interlocutory relief.”
It added that the president was wrong in arguing that the duty to act on the arrest warrant would only arise “if” Putin were to touch down on South African soil.
Even now, the director general of the justice department was to ensure that the process of issuing a domestic warrant of arrest for Putin was put in motion, as required by section 9 of the statute.
“He has not done so.”