World is shrinking for leaders who commit atrocities and think themselves untouchable

Ukrainian soldiers open fire from a large-caliber machine gun to suppress enemy shelling at the positions as special military unit "Kurt & Company group" keep the defense of the first line of the frontline Russian-Ukrainian war on 3 Novembe 2023 in Bakhmut District, Ukraine, the frontline of the Russian Ukrainian war. (Photo: Kostya Liberov/Libkos/Getty Images)

By Max du Plessis and Eshed Cohen

23 Nov 2023

Whether it is Bashar al-Assad, or Vladimir Putin, or any other alleged war criminal, the lesson is clear. The world is increasingly a hostile place for those who unlawfully perpetrate hostilities on civilians, neighbours, children, and the vulnerable.

On 16 November 2023, a French court issued a warrant for the arrest of Bashar al-Assad, the incumbent president of Syria. Al-Assad stands accused of complicity in war crimes and crimes against humanity.

The allegations against him and several others involve the use of chemical weapons, specifically the nerve agent sarin. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1993 bans the production and stockpiling of sarin.

The warrant for Al-Assad has rightly been described in The Guardian as a historic moment. The warrant marks a significant step towards achieving justice for the victims of the chemical attacks in the Ghouta region in August 2013. It is one of few ever issued against a head of state, whether incumbent or past. The warrant signals an intention to enforce international criminal law against the most powerful political actors, even those traditionally considered immune from criminal prosecution.

The oddity is how the English press appears fixated on this European moment. The Guardian reported that campaigners for international justice “believed” this “to be the first time a sitting head of state has been the subject of an arrest warrant in another country for crimes against humanity”.

But that overlooks many such developments elsewhere, particularly in the Global South, as it has come to be called. For example, South Africa is no stranger to warrants for the arrest of heads of state accused of international crimes.

Eight years before the warrant for Al-Assad, in 2015, a South African magistrate issued a warrant for the arrest of Omar al-Bashir, the then-incumbent president of Sudan. South Africa, despite its duty to enforce a warrant issued by the International Criminal Court (ICC), allowed al-Bashir to flee South Africa. Al-Bashir stood accused of war crimes, crimes against humanity, and genocide. South Africa was hauled before the ICC to explain its failure to do its duty.

Earlier this year, and only after much dithering and prevaricating by government about its duty to arrest a wanted war criminal, the Pretoria high court ordered that South Africa is legally obliged to arrest Vladimir Putin, the current president of Russia. As with Al-Bashir, South Africa’s duty to arrest Putin arose from the ICC’s decision to issue a warrant for Putin’s arrest.

Read more in Daily Maverick: Arresting Putin risks engaging in war with Russia, President Ramaphosa warns on national security

Putin stands accused of the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to Russia. Shortly after the high court made its order, the South African government announced that Putin would not attend the BRICS Summit held in Johannesburg, and it confirmed that it had endorsed an ICC warrant for Putin’s arrest.

The Al-Assad arrest warrant differs in at least one material way from the two warrants for Al-Bashir and Putin. The French court has decided that there is sufficient evidence to prosecute Al-Assad domestically. The warrant for Al-Assad’s arrest is not to secure his presence before the ICC. The warrant is to secure his presence before the courts in France.

France has decided to exercise its universal jurisdiction over international crimes. That is, France has decided to exercise its power to prosecute an international crime, even though the crime occurred outside of France’s territory.

South Africa could take similar decisions. Under the Implementation of the Rome Statute Act, South Africa has domesticated the ICC statute and has the power to exercise jurisdiction over international crimes committed anywhere in the world.

The fact that a person is or was a head of state is neither a defence to an international crime nor a ground for reduction of sentence once convicted of a crime. South Africa’s prosecuting authority and (if an appropriate case is established) courts can decide to prosecute persons who commit international crimes, even if those crimes are outside of South Africa and even if committed by heads of state.

Ukraine, war crimes Ukrainian soldiers open fire from a large-caliber machine gun to suppress enemy shelling at the positions as special military unit "Kurt & Company group" keep the defense of the first line of the frontline Russian-Ukrainian war on 3 Novembe 2023 in Bakhmut District, Ukraine, the frontline of the Russian Ukrainian war. (Photo: Kostya Liberov/Libkos/Getty Images)

The issue for both South Africa and France, as illustrated by the Al-Bashir and Putin sagas, is the enforcement of that jurisdiction. Deciding to prosecute an incumbent head of state is one thing; securing their presence before a court is another.

But even before those practical difficulties, are the political ones: the Al-Bashir saga demonstrates how an absence of political will, or the existence of the wrong kind of political will, can result in the subversion of international criminal law.

Prosecuting an incumbent head of state, given their political power, is a tough task. Shy of a political ousting, as for example with Slobodan Milošević, the prospects of arresting and trying a sitting head of state are slim.

Nonetheless, civil society and French, South African and other courts are left to ensure consistency and to demand rule of law accountability for all those who commit atrocity crimes. As the Putin arrest warrant showed, decisions to prosecute heads of state are not inconsequential. Putin, ultimately, could not travel to South Africa.

By a high court order in Pretoria, far more than any wilful action on the part of the government, Putin was reduced to addressing an audience of senior state officials via Zoom from Russia. He similarly cannot travel to any country party to the Rome Statute of the International Criminal Court without attracting a risk of arrest.

For Al-Assad, the risk is similar in kind. He cannot travel in Europe since the French arrest warrant would ordinarily be enforceable anywhere in the European Union. He similarly cannot travel to any country where he might face the risk of extradition, like those countries (including South Africa) party to the European Convention on Extradition, 1957.

Whether it is Al-Assad, or Putin, or any other alleged war criminal, the lesson is clear. The world is increasingly a hostile place for those who unlawfully perpetrate hostilities on civilians, neighbours, children, and the vulnerable.

A French court issuing an arrest warrant for Al-Assad stands alongside the world shrinking for the Putins and Al-Bashirs who commit atrocities and think themselves untouchable. International criminal justice, for all its other problems, now increasingly allows the sending of a message that implicated leaders are not welcome: of making the world a smaller place, a riskier place to travel freely, for those that commit or abet crimes that offend our common humanity.

It is also important that this work is done globally. By joint approaches through French, South African, and other courts committed to universal jurisdiction, the principle of accountability is strengthened and its reach extended. DM

Max du Plessis, Senior Counsel, South Africa, is an Associate Tenant, Doughty Street Chambers, London; and Adjunct Professor of Law at the University of Cape Town and Nelson Mandela University.

Eshed Cohen is a South African advocate.

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