That would be a massive trauma. Putin’s slavish media groupies have even suggested Russia should “nuke” anyone who arrests him.

Such a literally ballistic response is, of course, rather unlikely, not least because Putin would presumably also be nuked in passing. But an arrest would certainly terminate South Africa’s friendship with Russia, which only seems to have blossomed since that country invaded Ukraine on 24 February 2022 – much to the chagrin of Pretoria’s Western allies.

So an arrest is certainly out of the question. And the question rather becomes; will South Africa politely ask Putin not to come in August? Or will it manage to persuade the ICC to allow him to come without risk of arrest? Or will it let him come – and go back home – in defiance of the ICC and its own courts?

South Africa is once again caught on the horns of an impossible dilemma: between its competing obligations towards an important political ally on the one hand, and its international and domestic legal obligations on the other.

It is starting to shape up as a rather gruesome repeat of the test which Pretoria confronted – and dismally failed – in 2015 when the ICC asked it to arrest then Sudanese President Omar al-Bashir when he visited South Africa for an African Union summit. Like Putin today, Bashir was under an ICC arrest warrant for atrocities committed against the people of Sudan’s Darfur region.

The South African government let Bashir in, and then let him escape, despite the ICC request as well as an order of South Africa’s own high court to prevent him from leaving until a local arrest warrant could be issued.

Reprimand

South Africa was reprimanded by the ICC, and, perhaps more damagingly, was reprimanded by its own courts for violating its treaty obligations to the ICC and breaking South Africa’s own law – as South Africa had, in 2002, domesticated its ICC obligations in the ICC Implementation Act.

Read more in Daily Maverick: ICC: SA had a duty to arrest al-Bashir and surrender him to the courts

So how will Pretoria handle this looming repetition of the embarrassing 2015 debacle? Most legal analysts seem to think it will duck the issue by politely asking Putin not to come to South Africa for the BRICS summit in August.

That was how South Africa handled Bashir in 2009 and 2010 when he was due to visit South Africa for the presidential inauguration of Jacob Zuma and the opening of the Soccer World Cup. It invited him ex-officio, but politely and quietly told him it wouldn’t be a good idea if he came – as it would have to arrest him.

Op-Ed: The Price of shunning the ICC

It’s never been clear why Pretoria didn’t do the same in 2015, but it may have been something to do with the fact that Bashir was coming for an AU summit, and so South Africa felt it could not refuse him. Will it feel the same in August, as Putin would be coming to a BRICS summit?

Two advocates who held opposing views on the Bashir saga nevertheless agree that, to avoid repeating that embarrassment, South Africa will probably ensure that Putin does not come to South Africa in August.

Duty to arrest

Dire Tladi, who was a legal adviser to the Department of International Relations and Cooperation (Dirco) in 2015 and a key player in its response to the ICC, told Daily Maverick: “I don’t see how he will come because there’s been three decisions (two by the South African courts and one by the ICC) all directed at South Africa, on the duty to arrest, notwithstanding any arguments.” 

Tladi, now a professor of international law at the University of Pretoria, said the only chance of Putin coming to SA would be “if the ICC gives South Africa a pass and says ‘okay, we’ll let you do it this time’.

“And they won’t. In fact, I’m quite sure this indictment was timed now precisely because they know he’s coming. I’m 90% certain of that.”

He believes the ICC deliberately intended “to show Putin that you can’t travel where you want. So they know he’s going to a place where they have a pretty strong case and the likelihood of enforcement”.

Options constrained

Tladi believes that South Africa’s legal options are even more constrained now than they were in 2015.

“With Bashir, there was some wiggle room because there hadn’t been all these cases directed at you.”

That allowed South Africa to plead ignorance by arguing, for instance, that it had a superior obligation not to arrest Bashir because of international customary law that grants immunity against prosecution to sitting heads of state – which the ICC explicitly doesn’t.

Tladi said South Africa’s arguments in 2015 were right. “But they didn’t work.” So it would be tricky to try to use them again in 2023.

Nicole Fritz was the founder and first executive director of the Southern Africa Litigation Centre which brought the Bashir cases against Pretoria, though by then she had left SALC and her successor, Kaajal Ramjathan-Keogh led
the Bashir litigation. SALC first obtained a high court order that the government should not let Bashir escape South Africa, and then secured further court judgments condemning Pretoria for having violated its obligations to the ICC and its own ICC Implementation Act.

But Fritz, now executive director of the Helen Suzman Foundation, agrees with Tladi that Putin is very unlikely to come to South Africa in August.

“I can’t see how he can come. Even if the SA executive were minded to flout their ICC and domestic legal obligations, they can’t speak for the courts.

“As with al-Bashir, it is entirely probable that the courts would order the execution of the arrest warrant. And then what? Is the executive going to rely on an order to the police not to execute the arrest warrant? Will there be some hasty, fugitive-like escape by Putin from SA’s shores?

Diplomatic nightmare

“There are just too many variables… too many moving parts for this to be anything less than a diplomatic nightmare for SA, which it will want to avoid at all costs.”

South Africa’s only option, then, seems to be to try to persuade the ICC and the South African courts to give it a pass, as Tladi put it.

Certainly, the government is exploring all legal options, as several officials have indicated. Minister in the Presidency, Khumbudzo Ntshavheni, told journalists on Thursday that Dirco had not yet submitted its legal opinion to the Cabinet for approval.

In theory, one option would be for South Africa to withdraw from the ICC, but Tladi said that was not a solution because even if South Africa managed to adopt the necessary legislation in time, the ICC’s Rome Statute stipulates that it would take 12 months for the withdrawal to take effect. 

“And even then, the withdrawal doesn’t affect any obligations which exist at the time of withdrawal. So that’s not going to help now.”

A major irony of this case is that former president Zuma tried to withdraw from the ICC in 2016 after the Bashir debacle. The courts overruled his purely executive decision, saying he should have gone through Parliament. His administration did then table legislation to withdraw in December 2017, and, later that month, the ANC fully endorsed his decision at its conference.

But President Ramaphosa ousted Zuma in February 2018 and the ICC withdrawal bill gathered dust in Parliament because Ramaphosa clearly didn’t want SA to withdraw from the ICC.

In December 2022, the ANC reversed its 2017 decision and backed SA remaining in the ICC. Ntshavheni told journalists on Thursday that the ICC withdrawal bill had been withdrawn a few weeks ago.

Just in time for the looming Putin crisis to erupt!

Legal manoeuvres

What then are the legal options South Africa is exploring? It’s not clear. But Tladi suggests that in theory, South Africa might be able to get around the problem by amending its own ICC Implementation Act. He notes that back in 2015, the Supreme Court of Appeal ruled that the government had been right as far as international law was concerned in granting immunity from arrest to Bashir. But the court said Pretoria had fallen foul of its own law.

“So one possibility… would be to amend legislation… so that (presidential) immunity is recognised,” Tladi said. But he doesn’t think there is enough time for that.

It would also seem that even if that option might appease the South African courts, it probably wouldn’t impress the ICC.

Oddly, though, there are rumours circulating in Pretoria that South Africa is, in fact, contemplating an amendment to the ICC Implementation Act – and perhaps in just that way.

Another legal analyst, who wishes to remain anonymous, suggests another possible option for South Africa to wiggle out of its looming dilemma.

He notes that the Bashir case is not a perfect precedent for a theoretical Putin case. Bashir was indicted by the ICC on the basis of a referral from the UN Security Council. This referral meant that, though Sudan was not a party to the ICC Rome Statute, it had to be treated as one.

“This allowed the ICC to apply Article 27 of the Rome Statute, which states that no official capacity – such as being a head of state – exempts a person from criminal responsibility.” In other words, the usual immunity against prosecution – which is granted to sitting heads of state under customary international law – was overruled.

Putin case ‘differs’

But he notes that the Putin case is different. Neither Russia nor Ukraine is a member of the ICC and there was no UN Security Council resolution ordering the ICC to arrest Putin. (If anyone had tried that, of course, Russia would have vetoed it.)

Instead, the ICC prosecutor indicted Putin because Ukraine had accepted the ICC’s jurisdiction over Ukraine where Putin’s alleged offences were committed.

“The fact that there is no UN Security Council resolution might be a crucial aspect for the assessment of Putin’s immunity as a sitting head of state,” this analyst said.

He said this could provide South Africa with the opportunity to argue that Russia should not be treated as a de facto party to the Rome Statute, as Sudan had been in 2015.

This in turn could mean that Article 27 – excluding immunity even for sitting heads of state – would not apply. South Africa could argue that Article 98 of the Rome Statute should instead apply. Article 98, which South Africa tried to invoke in the Bashir case, basically prevents the ICC from compelling an unwilling state to surrender a fugitive if doing that would be inconsistent with its obligations under international law or international agreements.

In the Bashir case, the ICC judges rejected South Africa’s Article 98 argument on the grounds that the UN Security Council referral had made Sudan a de facto state party to the Rome Statute, and so immunity did not apply.

Without the Security Council referral this time, “South Africa could argue that, based on customary international law and/or a bilateral agreement with Russia, Putin still enjoys immunity and that the ICC may not proceed with the request to arrest and surrender”, this legal analyst conjectured. 

Whatever happens over the next few months, lawyers are going to have a field day. DM