Putin visit: SA ‘won’t escape sanction’ over ICC arrest violation

EIGHT years since South Africa failed to comply with an International Criminal Court (ICC) order to arrest former Sudan president Omar al-bashir, it now faces a similar predicament with Russia’s Vladimir Putin, for whom the ICC issued a warrant of arrest for alleged war crimes last month.

Putin is an invited guest of the South African government to the 15th BRICS Summit to be hosted in Durban in August, but after the ICC’S decision it remains to be seen whether Putin will attend.

Putin is accused of involvement in the illegal deportation of children from Ukraine to Russia.

SA political parties have called on President Cyril Ramaphosa’s administration to honour its ICC obligation to arrest Putin if he arrives in South Africa

South Africa is one of 123 signatories of the Rome Statute that established the ICC.

With South Africa having escaped punishment for not complying with the ICC’S warrant of arrest for al-bashir when he visited South Africa in 2015, an international law expert has warned that the country would most likely not get off lightly this time

Al-bashir, now 77, is wanted by the ICC for crimes against humanity, war crimes and genocide in the Darfur region in western Sudan.

Professor Hannah Woolaver, associate professor in public international law at the University of Cape Town, said that not arresting Putin if he arrived in the country in August would essentially mean dereliction of South Africa’s commitment to the ICC.

Woolaver said that if South Africa failed to arrest Putin, it would be in violation of its international law obligations under the Rome Statute.

“The government will also be in violation of its own domestic law obligations under the International Criminal Court Act.

“It is likely that, like with the failure to arrest former president Bashir of Sudan in 2015, the South African government will be sanctioned both by the ICC and South African courts for its violations of both domestic and international law obligations.”

However, Woolaver said that it may be possible for the government to grant immunity in domestic law to Putin by ministerial order, on the basis of the Diplomatic Immunities and Privileges Act.

“However, even if they do so, they would still be violating their obligations under the ICC treaty to arrest Putin and surrender him to the ICC for prosecution,” Woolaver said.

The conundrum facing South Africa on whether to arrest Putin or not should he make his way into the country is not only compounded by the fact that the country is a member of BRICS and has had diplomatic relations with Russia for over 30 years, but also the threat posed by the superpower should its head of state be arrested by South African law enforcement.

Earlier this month Dmitry Medvedev, deputy chairperson of the Security Council of the Russian Federation, spelt out the possible consequences for any country that would attempt to arrest the Russian president as per the requirements by the ICC of its member states.

Medvedev said Russia was prepared to bomb any country that would arrest Putin, leaving South Africa with a tough decision whether to withdraw its invitation to Putin or face the conundrum of arresting Putin and thus facing the might of the Russian state.

The alternative for the Ramaphosa administration is to follow in the footsteps of the Jacob Zuma administration, which did not comply with an ICC order to arrest al-bashir.

The decision not to arrest al-bashir was deemed an error by ICC judges in 2017.

However, there were no consequences or sanctions imposed on South Africa for its refusal to abide by the order of the court it subscribes to.

The ICC has been described by some as unfair in its dealings, with Minister of International Relations and Co-operation Naledi Pandor recently saying the ICC’S objectivity had been dimmed by the perception that it was not a fair arbiter in all abuses and infringements of human rights.

However, Woolaver said that she did not believe that the ICC was a biased institution, although limited by its legal jurisdiction.

Woolaver said that the limitations included the fact that the ICC could only prosecute crimes committed on the territory of states that have signed up to the Rome Statute, crimes committed by nationals of states that have signed up to the Rome Statute, or cases where there is a Security Council referral.

“It does not have the power to exercise jurisdiction outside of those circumstances. The South African government has itself recently confirmed that it has chosen to remain a member of the ICC.

“A Justice Department spokesperson recently stated that one reason South Africa decided to remain a member of the ICC ‘was the consideration that SA was one of the leading countries which had championed the Rome Statute’ and that South Africa’s ‘robust engagement had positively impacted and contributed to the ICC being substantially reformed for the better’,” Woolaver said.

On Thursday, in what appeared to be a show of strong ties with their Russian counterparts, the Department of International Relations and -Cooperation held the 17th Session of the Sa-russia Joint Inter-governmental Committee on Trade and Economic Co-operation.

Clayson Monyela, spokesperson for the Department of International Relations and Co-operation, did not respond to questions sent to him on what course of action South Africa would take on the matter of Putin’s visit.