Since the eruption of the Ukraine-Russia conflict in February 2022, South Africa has maintained a “non-aligned” approach, arguing that “peaceful dialogue”, “mediation”, “negotiation” and “diplomacy” are the only “constructive solutions” that will end the conflict.

Further, it has abstained from voting in favour of every resolution by the United Nations General Assembly’s Emergency Special Session that has condemned Russia’s aggression and commission of gross human rights violations.

Yet, doubt is increasingly cast upon South Africa’s proclaimed neutrality on the conflict.

Some recent examples include joint military drills with Russia and China that overlapped the first anniversary of the outbreak of the conflict, International Relations Minister Naledi Pandor’s repeated emphasis that Russia is a “historic friend”, allegations that the government supplied arms and ammunition to Russia, chief of the South African army Lieutenant-General Lawrence Mbatha’s meeting with his Russian counterpart, General Oleg Salyukov, “to discuss matters of mutual interest”, as well as a telephone conversation between Russian President Vladimir Putin and SA President Cyril Ramaphosa where they “expressed a desire to further step up mutually beneficial ties in various areas”.

Another factor casting serious doubt on South Africa’s proclaimed neutrality is its response to the ICC’s arrest warrant against Putin. Putin is accused of the war crime of unlawfully deporting and transferring children from occupied territory in Ukraine, but the ICC is also investigating genocide and crimes against humanity.

Earlier this year, Putin was formally invited to attend a BRICS summit scheduled to take place in South Africa in August. However, there are already strong indicators that the government will not execute the warrant should he attend in person.

The Department of International Relations indicated that it was seeking a legal opinion on whether there is indeed an obligation to arrest and surrender Putin to the ICC.

In April, Ramaphosa sowed confusion when he stated that South Africa would withdraw from the ICC, contradicting a December 2022 ANC resolution that the government must “rescind” its withdrawal from the ICC.

Then, on 29 May, Naledi Pandor gazetted a notice granting general immunity “to the participants of the BRICS Ministerial Meeting and the BRICS summit for the duration of both meetings”. Although such a notice granting immunity to attendees of international events is not unusual in itself, the direct upshot of this particular notice is that Putin might be protected by the government should he attend the summit in person.

These unfolding events point to the advent of the prediction of the Supreme Court of Appeal in 2017 that the issues raised in the Al-Bashir case will continue to be a “live and justiciable controversy” and an issue “of public importance that will have an effect on future matters” for South Africa.

In 2015, South Africa was faced with executing ICC arrest warrants for war crimes, crimes against humanity and genocide against another political ally, the then president of Sudan, Omar al-Bashir. Al-Bashir attended an African Union summit hosted by South Africa, but the government failed to arrest and surrender him to the ICC.

The government’s justification was that a “host agreement” published as a notice in the Government Gazette granting immunity to delegates and attendees “provided the requisite reprieve to South Africa not to comply with its ICC obligations of arresting President Bashir during his attendance of the summit”.

However, the high court explicitly held that the implementation of the Rome Statute of the International Criminal Court Act “enjoys legislative authority, having passed through Parliament, and it cannot be displaced by a notice promulgated by a Minister or by a Cabinet decision”.

On appeal, the Supreme Court of Appeal confirmed this, emphasising that the act’s exclusion of immunity to anyone “is a clear indication that South Africa does not support immunities when people are charged with international crimes”, and that the Government Gazette notice unmistakably “demonstrated that as far as South Africa was concerned this involved a departure from its commitment to its obligations under the Rome Statute”.

The ICC also decided on the matter, stating that South Africa, when it “voluntarily ratified the Statute”, accepted that “immunities based on official capacity, including those that they may otherwise possess under international law” are clearly excluded and “rendered inapplicable”.

‘Mediator for peace’

Concurrent with these court proceedings, the government declared its intention to withdraw its membership of the ICC, labelling its obligation to arrest and surrender accused persons to the court a hindrance to its “role as mediator for peace” in conflict situations.

The domestic legislative process initially involved the introduction of a Bill repealing the Implementation Act, which was shortly thereafter withdrawn and replaced with the International Crimes Bill.

This Bill also aimed to repeal the Implementation Act, but further set out to guarantee absolute immunity from arrest and prosecution to incumbent senior government officials, as well as enabling South Africa to resolve conflicts through diplomacy and dialogue.

However, the bill was ultimately withdrawn on 10 March this year, incidentally exactly a week before the ICC issued its arrest warrant against Putin.

Unfortunately, the ruling party’s decision to remain a member state of the ICC did not indicate a larger shift in the government’s standpoint, as is illustrated by Ramaphosa’s statement regarding withdrawal from ICC membership.

The timing of the government’s backlash against Putin’s arrest warrant therefore suggests that this is not based on an established governmental principle, but more accurately to safeguard Putin in particular from ICC prosecution.

If all these arguments of the government were a true reflection of its principles relating to international criminal justice, there has been ample time to align our domestic law with it. The government could either have adopted the International Crimes Bill, or it could simply have amended the existing Implementation Act.

Instead, it completely withdrew the former and has not made any move towards amending the latter. The current legal obligations on South Africa, in terms of domestic and international law, as well as the three courts’ decisions, are therefore clear: the government must arrest and surrender Putin to the ICC should he enter South African territory.

All these obligations have been undertaken voluntarily, indicating that the government attaches importance to the prosecution of anyone accused of committing international crimes to ensure that they do not enjoy impunity.

Unfortunately, at this stage, a number of objective facts indicate that South Africa will once again prioritise its continued good political and economic relations with another “historic friend” by bestowing its head of state with immunity.

It remains to be seen whether the Al-Bashir arguments will be rehashed — for example that the recent Government Gazette notice trumps any obligations in terms of domestic or international law; whether the support base in favour of granting Putin immunity will grow; or whether there is any truth to threats that arresting Putin would be a “declaration of war”.

South Africa is therefore called upon to honour the main purpose of international criminal justice: to protect victims of genocide, crimes against humanity and war crimes by holding their perpetrators criminally responsible. South Africa entrenched this purpose as binding domestic law when it adopted the Implementation Act.

The government is further urged to make it unequivocally clear that any person against whom an ICC arrest warrant has been issued who enters South African territory will be arrested and surrendered to the court for prosecution.

This will, once again, place South Africa “in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that [is] a matter for national pride rather than concern. It is wholly consistent with our commitment to human rights both at a national and an international level.” (Minister of Justice and Constitutional Development v Southern Africa Litigation Centre 2016 3 SA 317 (SCA) at para 103). DM