Why and when did the ICC issue a warrant for Putin’s arrest?

On 17 March 2023, the International Criminal Court issued warrants of arrest for Putin and for his Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, for the alleged war crime of unlawful deportation of Ukrainian children in the Russia-occupied part of Ukraine and unlawfully transferring them to Russia, at least from 24 February 2022 (the day Russia invaded Ukraine).

How can the ICC hold Putin responsible for alleged crimes committed by subordinates?

Under Article 28(b) of the Rome Statute, which governs the ICC, superior commanders can be held liable for the crimes of their subordinates. And under Article 25(3)(a) individuals can be criminally responsible for offences jointly committed with or through others (in this case, Lvova-Belova).

How does this affect South Africa?

South Africa is an ally of Russia both bilaterally and through their joint membership of the BRICS bloc (Brazil, Russia, India, China and South Africa). Yet, as a member of the ICC, South Africa is obliged to cooperate with the court, including by arresting any fugitive from the court – like Putin – at the court’s request, if that fugitive enters its jurisdiction. 

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

In addition to this treaty obligation, the South African government is obliged to cooperate with the ICC, including by arresting fugitives, under South Africa’s own 2002 Implementation of the Rome Statute of the International Criminal Court Act (usually referred to as the ICC Implementation Act) which domesticated its obligations to the ICC.

Has the ICC requested South Africa to arrest Putin? 

Not as far as we know and it has refused to say. But it might do so closer to the expected date of Putin’s arrival.

How might SA deal with this dilemma?

The government is still seeking legal opinion. It could request the ICC to relieve it of the obligation to arrest Putin. If that fails, it could ask Putin not to come. Or BRICS could move the summit. Or Pretoria could try to amend South Africa’s ICC Implementation Act to insert immunity from prosecution for a sitting head of state (which is not in the Rome Statute as it grants immunity to no one). Or it could simply defy the ICC and probably SA’s own courts and allow him to come without arresting him. 

What happens if Putin arrives in South Africa and the South African government refuses an ICC request to arrest him?

We have precedent for that. In June 2015, then Sudanese President Omar al-Bashir visited South Africa for an African Union summit. The ICC had indicted him and issued warrants for his arrest in 2009 and 2010 for crimes against humanity, war crimes and genocide for atrocities committed by soldiers and militias under his ultimate command in the rebellious western region of Darfur from March 2003.

Read more in Daily Maverick: Putin’s scheduled visit to South Africa could herald another Bashir debacle

The ICC asked Pretoria to arrest and surrender al-Bashir and overruled its plea that it could not arrest him because it had a conflicting and superior obligation under international customary law to respect his immunity against prosecution, as a sitting head of state. The ICC insisted that the Rome Statute, which SA had ratified, grants immunity to no one.

What did SA do back then?

Al-Bashir arrived in South Africa on 13 June 2015. On application from the Southern Africa Litigation Centre, a rule-of-law activist NGO, the Pretoria High Court issued an interim order on 14 June to the SA government to detain al-Bashir in South Africa, pending the finalisation of the matter on 15 June.

On 15 June, the same court ordered that al-Bashir be arrested and transferred to the Hague. But, by then, Pretoria had let him leave the country.

What were the legal consequences of South Africa’s failure to arrest and surrender Omar al-Bashir?

The Pretoria High Court ruled that the South African state’s actions had been unconstitutional and, therefore, invalid.

The government requested leave to appeal against the high court judgment, which the court denied. The state then petitioned the Supreme Court of Appeal, which ruled on 15 March 2016 that the government’s failure to arrest President al-Bashir had been unlawful.

Read more in Daily Maverick: South Africa’s conduct ‘disgraceful’ in Bashir case, court says

On 8 April 2016, the government applied for leave to appeal to the Constitutional Court – but then withdrew its application.

How did the ICC react?

On 6 July 2017, the ICC’s Pre-trial Chamber II ruled that South Africa had failed to comply with its obligations under the Rome Statute by not executing the ICC’s request to arrest and surrender al-Bashir. 

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

The ICC court did not go further by referring South Africa’s failure to the ICC’s Assembly of States Parties or to the UN Security Council, which might have imposed sanctions on South Africa.

The ICC court said it had not done that because the South African courts had already ruled that Pretoria had not fulfilled its obligations to the ICC or to South Africa’s own laws, and also because South Africa had cooperated with the ICC’s investigation into SA’s failure to arrest and surrender al-Bashir.

Read more in Daily Maverick: ISS Today: The real problem behind South Africa’s refusal to arrest al-Bashir

Will we see a repetition of this embarrassing episode with Putin?

It is not clear yet how Pretoria will handle this dilemma. It is still seeking legal opinions. Some legal experts believe it will politely and quietly ask Putin not to come to South Africa, to avoid legal embarrassment. That’s what it had previously done with al-Bashir when he was scheduled to visit South Africa for President Jacob Zuma’s inauguration in 2009 and the opening of the Soccer World Cup in 2010. 

It’s also possible that the BRICS summit could be moved to another country. Or Putin could send a representative to South Africa.

Is it realistic to expect the ICC would allow SA to host Putin without arresting him?

Probably not, but it’s not clear. The Putin case is different from the al-Bashir case because al-Bashir was indicted by the ICC on the basis of a referral by the UN Security Council. That effectively made Sudan an ICC member and meant the ICC was not obliged to seek Sudan’s permission – as a non-ICC member – to arrest him. 

Neither Russia nor Ukraine are members of the ICC either, but the UN Security Council did not refer the case to the ICC. The ICC was able to indict Putin because Ukraine had accepted the ICC’s jurisdiction.

Some legal experts believe the fact that there was no UN Security Council referral of Putin could mean the ICC would need to seek the approval of Russia – as a non-ICC member – before arresting him. Which it obviously would not give.

If the ICC still refuses to allow SA to allow Putin to come and go, what will SA do?

There is speculation that Pretoria might try to amend South Africa’s ICC Implementation Act to allow for immunity against prosecution for sitting heads of state, though it’s not clear if there’s time for that. That would probably not appease the ICC, anyway.

Could South Africa get around the dilemma by withdrawing from the ICC?

In 2016, Zuma’s administration tried to withdraw from the ICC in the wake of the al-Bashir debacle. But the South African courts ruled that the government needed the approval of Parliament. So in December 2017, Zuma’s administration tabled legislation for withdrawal.

Then Zuma was ousted and his successor, President Cyril Ramaphosa, didn’t seem to want to withdraw and so the legislation gathered dust. This year, the ANC reversed its 2017 decision that SA should withdraw from the ICC and the government withdrew the ICC withdrawal bill in March.

Could SA try for withdrawal again to resolve its Putin dilemma?

It’s too late for that now. However quickly Pretoria gets such legislation passed, the Rome Statute prescribes that withdrawal only takes effect 12 months after it is applied for. And any obligations an ICC member state has before withdrawal (such as arresting Putin), remain in force.

So if all Pretoria’s legal efforts fail, would it arrest Putin and surrender him to the ICC in The Hague?

That’s unthinkable. It would be catastrophic for its ever-cosier relations with Moscow and possibly dangerous – as Russia might retaliate. It could also lead to SA being expelled from BRICS, an organisation it values very highly.

So what then?

If it can’t find a legal loophole, it’s likely SA would either ensure Putin does not visit South Africa or, if it feels strongly enough about its Russia and BRICS relations, would simply defy the ICC and allow Putin to attend the BRICS summit and leave.

But it seems unlikely Pretoria would want to be branded, again, as a lawbreaker by South Africa’s own courts. DM