The ICC would expect SA to arrest Vladimir Putin if he sets foot in the country, but would that be fair and just?

The ICC would expect SA to arrest Vladimir Putin if he sets foot in the country, but would that be fair and just?
Russian President Vladimir Putin. (Photo: EPA-EFE / Igor Kovalenko)

The leaders of every state in the world will proclaim that their state complies with international law. States, just like individuals, always justify their conduct as lawful with reference to a set of facts. In attempting to justify the lawfulness of their conduct, states point to a host of international law norms, standards and rules.

And so President Vladimir Putin has and continues to justify the Russian conflict with Ukraine and says that Russia has not committed any unlawful act. Some leaders disagree with that assessment.

Interestingly, the prosecutor and three judges of the International Criminal Court believe Putin and the Russian children’s commissioner, Maria Lvova-Belova, are guilty of war crimes. To that end, the ICC has issued arrest warrants for allegedly overseeing the abduction of Ukrainian children.

icc sa putin

Russian President Vladimir Putin meets with Russian Presidential Commissioner for Children’s Rights Maria Lvova-Belova at the Novo-Ogaryovo state residence, outside Moscow, Russia, 16 February 2023. (Photo: EPA-EFE / Mikhail Metzel / Sputnik / Kremlin Pool)

The ICC is a court based in The Hague established by a multilateral treaty called the Rome Statute of the International Criminal Court.  There are 123 state parties to the Rome Statute. Russia is not one of the 123 countries, but Ukraine and South Africa are both signatories and thus have international obligations to the other state parties.

South Africa was the first African state to sign the Rome Statute on 17 July 1998 and ratified it on 27 November 2000. Under former president Jacob Zuma, SA attempted in 2016 to withdraw its membership of the ICC. But the high court ruled that the attempt was procedurally unconstitutional and invalid. Thus, South Africa, by being a party to the Rome Statute, has all the international law obligations contained in the 128 articles the Rome Statute imposes on its members.

SA obligations

Two key aspects of South Africa’s international obligations are (1) for South Africa to domesticate the Rome Statute’s provisions into South Africa’s national law. This was done by the enactment of the Implementation of the Rome Statute of the International Criminal Court, Act 27 of 2002, and (2) to cooperate with the ICC by, for example, providing it with information such as documentation, or questioning any person being investigated or prosecuted when requested by the ICC.

It also has the obligation to surrender (or extradite, as the concept is referred to in respect of requesting States) to the ICC any person found on South African territory when the ICC transmits a request for the arrest and surrender of that person.

To give effect to the international obligation to arrest and surrender persons who are on South African territory, Parliament enacted the Implementation Act.

The Director-General: Justice is defined as the Central Authority. On receipt of a request by the ICC for the arrest and surrender of any person for whom a warrant has been issued by the ICC must be referred to the Central Authority. The Central Authority must immediately on receipt of the ICC’s request forward it to a magistrate. And the magistrate must endorse the ICC warrant for execution in any part of South Africa.

The person having been arrested is subject to an inquiry. At the inquiry, the magistrate checks whether the ICC warrant actually applies to that person, whether he or she was arrested lawfully and whether the person’s constitutional rights have been respected.   

If these three boxes are ticked, the magistrate must order that the person be surrendered to the ICC. And the person then is removed from South Africa in the custody of a person authorised by the ICC to receive him or her.  

It is noteworthy that the President and the rest of the executive, such as the Minister of Justice and the Minister of International Relations and Cooperation, play no role in the matter. The South African arrest and surrender of a person wanted by the ICC and found in South Africa appear to not be affected by geopolitical concerns and the niceties of statecraft.      

Omar al-Bashir

Moreover, the complex issue of immunity for heads of state could arise.  In the saga involving President Omar al-Bashir (Sudan), the government did not arrest al-Bashir when he visited South Africa even though a warrant for his arrest had been issued by the ICC.   

The SA government argued that al-Bashir enjoyed full immunity from arrest by virtue of his position as head of state. Civil society contended the government was obliged to arrest and surrender al-Bashir because no immunity under international law for international crimes exists.

The South African courts ultimately held that immunity did not cover al-Bashir. So, it would seem the same difficulty would apply to President Putin.

Two further interesting aspects arise. First, how could it be that Putin could be subject to an ICC arrest warrant if Russia is not a party to the Rome Statute?  

The answer is that Ukraine is a member of the ICC and the alleged crimes are said to have occurred on the territory of Ukraine. Crimes committed on the territory of a state party by a person of any nationality may be prosecuted by the ICC.  

The second issue is that Russia’s top investigative body, the Investigative Committee, has opened a criminal case against the ICC prosecutor and the three judges who issued the arrest warrant for Putin on war crimes charges.

The Russians issued statements to the effect that there were no grounds for criminal liability on Putin’s part, and heads of state enjoyed absolute immunity under a 1973 United Nations convention. And “the criminal prosecution is obviously illegal since there are no grounds for criminal liability”.

Ukrainian children

To appreciate the background to the ICC arrest warrant saga, it is worth recalling that Ukraine claims more than 16,000 children have been illegally transferred to Russia or Russian-occupied territories since the hostilities commenced nearly 13 months ago. That is a serious allegation, and if true constitutes a serious international crime. Russia has publicly said it has brought thousands of Ukrainian children to Russia in what it asserts is a humanitarian campaign to protect orphans and abandoned children in the conflict zone.

International criminal justice has moved a long way from the Nuremberg trials after World War 2.  For an international criminal court to have issued an arrest warrant for a sitting head of state during an armed conflict between that state and another state would have been unthinkable a generation ago.

Is it unnerving or exciting to imagine what the next generation can expect? Hopefully, there will not be a need for these kinds of difficult and complex issues to be solved.  

The effect of the South African Implementation Act is that the geopolitical and nuanced debates that occur in the United Nations General Assembly and other international bodies will play no role should Putin visit South Africa. 

Only state functionaries, such as the Director General: Justice and a magistrate, will play any role in his arrest and surrender to the ICC.  And they would play a limited tick-box exercise. The President, the Ministers and political role players are not involved at all. The question,  I suppose, can be asked: is that a positive thing?  

Should international criminal justice be determined by functionaries without any oversight by the executive? 

Fair and just

I think every single case must be decided on its own merits. And on that score, it is worth emphasising the words of a famous English judge, Judge Megarry, in a 1969 case called John v Rees: “As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

Some may think: “Of course, President Putin is guilty. And he must be arrested and surrendered to the ICC to stand trial for war crimes.”  But, is that fair and just, without affording both sides (Putin on the one hand and the ICC on the other) a reasonable opportunity to present their cases before an arrest and surrender to the ICC are ordered?

International criminal justice as it develops presents myriad challenges, and this is just one of them. DM


Comments - Please in order to comment.

  • jcdville stormers says:

    Only thing they can catch is tax payers money

  • davidpearce says:

    “Of course, President Putin is guilty. And he must be arrested and surrendered to the ICC” – that is actually incorrect. It should read” Of course Putin has a criminal case to answer to”. Guilt needs to be established by the court. To this end, it is right that he be arrested should he set foot in our country. Let’s see if Putin can prove he’s not guilty of the charges.

    • Bruce Dickson says:

      That’s not the way it works.
      Abhorrent crimes are alleged and Putin surely has a case to answer but it is the ICC than needs to prove his guilt beyond a reasonable doubt. He does not have to prove his innocence.

    • Rory Short says:

      I think it is only fair that Putin should have his day in court only then would have the chance to defend himself against the allegations that are being made against him by the media, world wide I am sure.

  • Ludwig Braum says:

    This article is so wrong. There is a reason why Justitia is shown with her eyes covered.
    “Should international criminal justice be determined by functionaries without any oversight by the executive?”
    This is a misleading question that is wrong in principle, because there is no determination involved, by design.

    • Pet Bug says:

      A good start and then the article crumbles into boulevard press opinions on whether a court case is a fair mechanism to determine innocence or guilt.

      Of course a legal functionary is exactly the person to tick the boxes…
      Like Zuma is perfectly qualified to do this with his tinted lenses…?
      Quite bizarre.
      Poor standard of thought here.

    • Glyn Morgan says:

      I am not a legal type, and I try to stay away from any court of law. My understanding is that if Putin is arrested that does not say he is guilty. It only says that he is thought to be guilty. After that arrest, he would be transported (great term that, “transported”!) to the ICC for “processing”. What happens then is the interesting bit.

  • Peter Atkins says:

    I’m surprised that there’s even any debate about whether Mr Putin should be arrested by SA functionaries if he sets foot in SA. The ICC and the Rome Statute say he should, end of story. Then he will have his chance to defend himself at the ICC court.

  • Jane Crankshaw says:

    Since when does SA play by civilised rules! BRICS have got our Prez by the balls – no way he’s going to do the right thing here!

  • Bryan Shepstone says:

    Let’s give Vlad his day in court. Maybe it’s all just a little misunderstanding….🤔🤨

  • Dellarose Bassa says:

    Putin’s arrest. should he set foot in SA – or any other country that is a signatory to the Rome Statute – will NOT be UNFAIR. Once arrested and handed over to the ICC, . At this point the ICC will have to present all the evidence against him and he, in turn, will be able to defend himself. What’s UNFAIR about that? He’d better stay at home.

  • Hilary Morris says:

    I suspect that the number of people who expect South Africa to do the correct thing and arrest Putin is as small as the likelihood of our government complying with the ICC ruling.

  • Rory Short says:

    I think it is only fair that Putin should have his day in court only then would have the chance to defend himself against the allegations that are being made against him by the media, world wide I am sure.

  • Joe Trainor Trainor says:

    It seems to me that there are a couple of issues at play here. On the one hand, Putin (like any other accused person on the planet) deserves the right to due legal process and a fair trial. On the other hand, it must be recognised that a fair legal process could never take place while Putin is safe in Russia. Hence the existence of the ICC. An institution that is supposed to operate without the encumbrance of national boundaries. For due legal process and a fair trial to take place, Putin needs to be surrendered to the Hague. While there he can buy the best legal defence he can afford. But he must face the music.

  • The Proven says:

    “Fair and just” have gone too far – the charges are serious, as is stated in the article. 16000 children – that can’t be made up! Effectively Russia has admitted to the charges. A rapist isn’t allowed to walk free until one day a court case occurs – arrest followed by evaluation and only in extreme cases bail occurs – why is it different for Putin?

  • Johan Buys says:

    We don’t all agree to many “rules”. Take it down to speed limits.

    The main road to town is split highway four lanes. Parts are 60km/h other parts are 80 km/h.

    I may disagree with the 60 part. Neither Russia or the US regard them subject to ICC. If I speed in the 60 zone, the fine is based on 60, tough luck.

    We are signatories. Putin can decide whether or not to speed in SA.

  • Neil Parker says:

    We are already a criminal state as is clearly evidenced by the De Ruyter fiasco. So of course we’ll invite fellow criminals to our country. And we don’t care how many people Putin has murdered – we’re already well on track to follow suite. But as for the citizenry we remember Babita. And we remember the attempt on De Ruyter. And we will not forget. Take note Julius Malema because we haven’t forgotten all the corruption in your tenure as ANC youth leader. And we haven’t forgotten the VBS looting. You’re not the President , you’re not the “Commander in Chief” and you don’t speak for us. At all.

  • Stefan Schmikal says:

    The whole ICC charge itself seems to be theatrical in nature. Of all the things for which Putin could be charged with war crimes, the one they picked it is least credible.

    Instead of charging Putin with a crime of substance (war crimes, aggression, destruction of vital infrastructure) this is merely a stab at massaging a narrative in a way that appeals to the lowest common denominator: “Evil Putin, stealing those poor children”, like some sort of Grimm fairly tale with a caricatured villain.

    It’s not as if Russan soldiers are ripping babes from their mothers’ arms. Most of these children are likely orphaned / homeless and removed from hiding in basements that were being bombed. Maybe they are not placed with new loving families but better than living in an orphanage in a war zone.

    Plus, the ICC is toothless (since the US doesn’t recognize it either) so nobody will ever enforce the arrest warrant.

  • William Stucke says:

    “But, is that fair and just, without affording both sides (Putin on the one hand and the ICC on the other) a reasonable opportunity to present their cases before an arrest and surrender to the ICC are ordered?”

    Actually, Anton, as a practicing lawyer, you seem to have it arse-backwards. The way it works is like this:
    1. Charges are laid.
    2. A Court decides if these charges have any merit. Apparently, the ICC has made this determination.
    3. The Accused is delivered to court and answers the charges.
    4. Evidence is led by both parties.
    5. The issues are argued, and witnesses called.
    6. Eventually, the Court makes a determination of guilt or otherwise …

    You don’t FIRST have a court case to look at whether there should be a court case. At least, not unless your name is Dali.

    To whom would you suggest that “a reasonable opportunity to present their cases before an arrest” be presented?

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