/ 28 March 2023

Time is ticking for South Africa to mull whether to arrest Putin

Russian President Vladimir Putin Attends The Russia Africa Summit In Sochi
Presidents Cyril Ramaphosa and Vladimir Putin. File photo by Mikhail Svetlov/Getty Images

On 17 March, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for his alleged war crimes in Ukraine. The court accused Putin, alongside Maria Alexeyevna Lvova-Belova, Commissioner for Children’s rights in the office of the Russian president, of “unlawful deportation and transfer of the Ukrainians (children) from the occupied areas of Ukraine to Russia”. 

This followed a global campaign by Ukrainian President Volodymyr Zelenskiy and sympathisers to have Putin held accountable for what they consider war crimes and crimes against humanity, in addition to violating Ukraine’s sovereignty. 

As expected, the Russian government was defiant in response to the court’s arrest warrant. As the country’s Ministry of Foreign Affairs spokesperson pointed out, “Russia is not a party to the Rome Statute of the ICC and bears no obligation under it.” 

While Russia signed this statute in 2000, they never ratified it and withdrew the country’s signature in 2016. However, president of the ICC Piotr Hofmanski dismissed the Russian claims, arguing that “the court has jurisdiction over crimes committed in the territory of a state party or a state which has accepted its jurisdiction”. Even though Ukraine is not a member of the ICC, it has accepted the ICC’s jurisdiction. In the event of the issue of an ICC arrest warrant, its subject can be detained and extradited if they travel to a member country.

In August this year, South Africa will be hosting a Brics summit comprising Brazil, Russia, India, China and South Africa. It is expected to take place in Durban. Given that South Africa is an ICC member if, between now and then, this is Putin’s only foreign visit, and if he does attend the summit, the ICC would expect South Africa to arrest Putin and hand him over to The Hague for trial. 

It would not be the first time the South African government was confronted with such a predicament. In 2015, when Jacob Zuma was president, the court had a warrant of arrest for president of Sudan Omar al-Bashir for his alleged war crimes and crimes against humanity in Darfur. When Al-Bashir came to South Africa for the African Union summit, the ICC expected the country to arrest and extradite him. However, Zuma did not command forces to make the arrest and Al-Bashir left South Africa after the summit. This came amid discontent among African leaders over the ICC’s perceived bias against the continent. 

South Africa faced criticism for its failure to make the arrest, with the ICC later ruling that the country had failed to uphold its obligation to the court as a signatory. While South Africa attempted to withdraw from the Rome Statute after the Al-Bashir controversy, the country remains a member of the ICC. The government might have to make another tough decision — whether or not to arrest the Russian president and hand him over to the ICC if he does come to the country in August. 

However, it is very unlikely he would be arrested, not only because of the strong ties between South Africa and Russia, but also because of the questions surrounding the court’s legitimacy and its perceived bias. Furthermore, the governing ANC has relations with Russia that go way back to the colonial and apartheid eras. 

While the court condemned South Africa for not arresting Al-Bashir, it was not referred to the Assembly of the State Parties or the United Nations Security Council, meaning no punishment was imposed. 

Time will tell whether Putin will attend, or send a delegation, to the summit. South African officials will be hoping for the latter because they have a very tough decision to make if he does come. However, August is still far away; it remains to be seen what will happen between now and then.

Dr Siphumelele Duma is a postdoctoral fellow at the University of Johannesburg’s Institute for Pan-African Thought and Conversation.