Russian president, Vladimir Putin.
(Contributor/Getty Images)
The government on Friday agreed to a high court order confirming its obligation to comply with the International Criminal Court’s (ICC) warrant of arrest for Vladimir Putin and its commitment to do so, three days after it was announced that the Russian leader would not attend the Brics summit in Johannesburg next month.
The order handed down by the Pretoria high court concludes a legal wrangle between the government and the Democratic Alliance (DA), which filed court papers in May to compel President Cyril Ramaphosa’s administration to respect its obligations to the ICC.
It confirms that after consultations between the government and the ICC in terms of section 97 of the Rome Statute, the international court concluded that South Africa was obliged to execute the warrant if Putin were to enter the country.
“The International Criminal Court has concluded the article 97 consultations, and confirmed that the Republic of South Africa, and all other state parties, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and requests for cooperation.”
The order further confirms that the director general of the department of justice, Doc Mashabane, on 29 June signed a letter forwarding the ICC’s request for assistance in arresting Putin to the national director of public prosecutions, Shamila Batohi, for implementation.
“The third respondent, on 29 June 2023, signed a letter forwarding the ICC’s request for cooperation to the National Director for Public Prosecutions (NDPP) to apply for an arrest warrant for President Putin in terms of section 9 (1) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which was sent to the
NDPP by his office on 17 July 2023.”
But the timeline of events reflected in the order and in affidavits filed to court show that the directive only reached Batohi after the government was given an assurance by Putin that he would not come to South Africa next month.
The DA had applied to the court for a declaratory order that the government had to execute the ICC warrant, and submitted that Mashabane was in breach of his obligations under section 9 of the ICC Act to put in motion the process of issuing a domestic warrant of arrest.
The order granted on Friday confirms that the director general will pay the applicant’s costs.
An affidavit filed by Mashabane confirmed that he received a note verbale on 8 May, in which the ICC formally requested the government’s assistance regarding warrants of arrest for Putin and Russian official Maria Alekseyevna Lvova-Belova for the abduction of Ukrainian children.
Mashabane said because there were “various considerations” he had to take into account, notably Putin’s invitation to attend the Brics summit, he then initiated a process in terms of section 97 of the Rome Statute to clarify South Africa’s obligations.
Section 97 obliges member states to consult the ICC if there is a problem that impedes their compliance with a request of the court.
The consultations with the ICC happened on 8 June, three weeks before Mashabane signed off on the letter instructing Batohi to ensure a domestic warrant of arrest was issued.
It was finally sent to her office on Monday, 17 July — one day before Ramaphosa confirmed to the court that Putin would not be coming to South Africa.
The government had filed its submissions to the court on a confidential basis, but on Tuesday the court ruled that all documents become part of the public record.
In a supplementary affidavit filed on the same day, Ramaphosa said he had spoken to Putin on Saturday and the Russian leader had agreed not to attend the Brics summit.
“Importantly, I confirm that Vladimir Putin will not be travelling to South Africa to attend the summit.”
It is understood that the justice department agreed to pay the DA’s costs because the case had been prolonged by the fact that the applicants were not made aware of material facts indicating that Mashabane was complying with ICC’s request.