The law is clear: Putin must be arrested if he sets foot in South Africa

Since the eruption of the Ukraine-Russia conflict in February 2022, South Africa has maintained a “non-aligned” approach, arguing that “peaceful dialogue”, “mediation”, “negotiation” and “diplomacy” are the only “constructive solutions” that will end the conflict.

Further, it has abstained from voting in favour of every resolution by the United Nations General Assembly’s Emergency Special Session that has condemned Russia’s aggression and commission of gross human rights violations.

Yet, doubt is increasingly cast upon South Africa’s proclaimed neutrality on the conflict.

Some recent examples include joint military drills with Russia and China that overlapped the first anniversary of the outbreak of the conflict, International Relations Minister Naledi Pandor’s repeated emphasis that Russia is a “historic friend”, allegations that the government supplied arms and ammunition to Russia, chief of the South African army Lieutenant-General Lawrence Mbatha’s meeting with his Russian counterpart, General Oleg Salyukov, “to discuss matters of mutual interest”, as well as a telephone conversation between Russian President Vladimir Putin and SA President Cyril Ramaphosa where they “expressed a desire to further step up mutually beneficial ties in various areas”.

Another factor casting serious doubt on South Africa’s proclaimed neutrality is its response to the ICC’s arrest warrant against Putin. Putin is accused of the war crime of unlawfully deporting and transferring children from occupied territory in Ukraine, but the ICC is also investigating genocide and crimes against humanity.

Earlier this year, Putin was formally invited to attend a BRICS summit scheduled to take place in South Africa in August. However, there are already strong indicators that the government will not execute the warrant should he attend in person.

The Department of International Relations indicated that it was seeking a legal opinion on whether there is indeed an obligation to arrest and surrender Putin to the ICC.

In April, Ramaphosa sowed confusion when he stated that South Africa would withdraw from the ICC, contradicting a December 2022 ANC resolution that the government must “rescind” its withdrawal from the ICC.

Then, on 29 May, Naledi Pandor gazetted a notice granting general immunity “to the participants of the BRICS Ministerial Meeting and the BRICS summit for the duration of both meetings”. Although such a notice granting immunity to attendees of international events is not unusual in itself, the direct upshot of this particular notice is that Putin might be protected by the government should he attend the summit in person.

These unfolding events point to the advent of the prediction of the Supreme Court of Appeal in 2017 that the issues raised in the Al-Bashir case will continue to be a “live and justiciable controversy” and an issue “of public importance that will have an effect on future matters” for South Africa.

In 2015, South Africa was faced with executing ICC arrest warrants for war crimes, crimes against humanity and genocide against another political ally, the then president of Sudan, Omar al-Bashir. Al-Bashir attended an African Union summit hosted by South Africa, but the government failed to arrest and surrender him to the ICC.

The government's justification was that a “host agreement” published as a notice in the Government Gazette granting immunity to delegates and attendees “provided the requisite reprieve to South Africa not to comply with its ICC obligations of arresting President Bashir during his attendance of the summit”.

However, the high court explicitly held that the implementation of the Rome Statute of the International Criminal Court Act “enjoys legislative authority, having passed through Parliament, and it cannot be displaced by a notice promulgated by a Minister or by a Cabinet decision”.

On appeal, the Supreme Court of Appeal confirmed this, emphasising that the act’s exclusion of immunity to anyone “is a clear indication that South Africa does not support immunities when people are charged with international crimes”, and that the Government Gazette notice unmistakably “demonstrated that as far as South Africa was concerned this involved a departure from its commitment to its obligations under the Rome Statute”.

The ICC also decided on the matter, stating that South Africa, when it “voluntarily ratified the Statute”, accepted that “immunities based on official capacity, including those that they may otherwise possess under international law” are clearly excluded and “rendered inapplicable”.

‘Mediator for peace’