On the authorisation of President Vladimir Putin, the Russian Federation invaded Ukraine on 24 February 2022. Both Russia and Ukraine have levelled accusations of alleged heinous international crimes under the Rome Statute of the International Criminal Court (the Rome Statute), against each other. This has attracted the attention of the International Criminal Court (ICC).
The ICC has issued a warrant of arrest for Putin (see ICC ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ (www.icc-cpi.int/news, accessed 2-5-2023)). This decision has engendered considerable interest globally. There is ongoing unabating debate on the possible arrest of President Putin if and when he arrives in South Africa (SA) to attend the BRICS Summit from 22 – 24 August 2023.
In an overarching approach, this legal discourse considers implications of the legal framework regarding the arrest and surrender of a head of state, under both the ICC cooperation regime, and under the jurisdiction of SA. Against this backdrop, the discourse determines whether the ICC warrant of arrest against President Putin would be enforceable when he is present in the territory of SA.
On 22 February 2023, the Prosecutor made necessary applications to the Pre-Trial Chamber II of the ICC, which culminated in the issuance of warrants of arrest, on 17 March 2023, for President Putin. The court determined that there are reasonable grounds to believe that President Putin bears individual criminal ‘responsibility for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukraine children’ (see ICC ‘Ukraine: Situation in Ukraine’ (www.icc-cpi.int/situations, accessed 2-5-2023) and articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute).
President Putin’s alleged individual criminal responsibility arises from two grounds, namely –
‘(i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute); and
(ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute)’ (ICC (op cit)).
Accordingly, a warrant of arrest was issued for President Putin. The crimes were allegedly committed in the occupied territory of Ukraine at least from 24 February 2022. President Putin and the Russian government have vehemently denied these allegations.
The ICC does not have its own police force to enforce its warrants of arrest, so it relies entirely on the national authorities of state parties, like SA, to effect an arrest. President Putin has been invited to visit SA for BRICS Summit on 22 – 24 August 2023. Can SA execute the ICC warrant of arrest against President Putin on his presence in its territory?
South Africa ratified the Rome Statute on 27 November 2000. It thereby became a state party to the Rome Statute. It is a member of the ICC. However, in 2016 South Africa deposited, with the UN Secretary General, its Instrument of Withdrawal from the Rome Statute pursuant to article 127(1) of the Rome Statute. Withdrawal only becomes effective one year from the date of deposit. Arguably, the withdrawal was inspired by its failure in 2015 to enforce the ICC warrant of arrest against former Sudanese President Omar al-Bashir.
Domestically, SA introduced the International Crimes Bill B37 of 2017 in 2017, which sought to withdraw South Africa from the Rome Statute, and thereby repeal its ICC membership. However, the attempted withdrawal from ICC by the South African government was aborted, as it was successfully challenged before the Gauteng High Court in Democratic Alliance v Minister of International Relations and Cooperation and Others 2017 (3) SA 212 (GP). On 22 February 2017, the High Court ruled that the attempted withdrawal from the ICC was unconstitutional because the mandatory requirement of prior approval of Parliament was not complied with. Consequently, the South African government withdrew the International Crimes Bill, and it revoked the Instrument of Withdrawal from the Rome Statute.
The resultant legal effect is that SA remains a member of the ICC, and therefore, as a state party of the Rome Statute it continues to be under certain obligations. South Africa is under certain obligations in respect of the ICC cooperation regime. There is a general obligation to cooperate fully with the court (article 86 of the Rome Statute). This entails a requirement for SA to enforce, within its own territory, a warrant of arrest issued by the court (article 89(1) of the Rome Statute). The Rome Statute further requires that SA, as a state party, must ensure that ‘procedures available under their national law for all of the forms of cooperation’ are implemented to enhance the cooperation regime under the Statute (article 88 of the Rome Statute).
In order to give effect to the provisions of the Rome Statute within the municipal jurisdiction of SA, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the ICC Act) was promulgated. This Act was designed to establish comprehensive ICC cooperation regime in SA.
The interesting question, is whether this Act empowers the South African courts to exercise criminal jurisdiction over the President of Russia? Does the question of the immunity of heads of state become relevant? Can the universality principle independently provide a basis for this jurisdiction?
Arguably, the ICC Act seems to contemplate the universal jurisdiction principle, when it provides, inter alia, that any person who commits an ICC crime outside the territory of the Republic, is deemed to have committed that crime in the Republic if that person is present in the territory of the Republic (s 4(3)(c) of the ICC Act). To this extent, it could be argued that President Putin would not be availed the possible cushion from arrest.
It is critical to note that Ukraine is not a state party to the Rome Statute, but it accepted the jurisdiction of the court ‘over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the [Rome] Statute’ (ICC (op cit)). By virtue of its first declaration under article 12(3) of the Rome Statute, ‘Ukraine accepted the ICC jurisdiction with respect to alleged crimes committed on Ukraine territory from 21 November 2013 to 22 February 2014’ (ICC (op cit)). In the subsequent declaration, Ukraine extended the period in the first declaration beyond 20 February 2014 without a definite end, in order to take into account ongoing alleged international crimes committed throughout the territory of Ukraine. Arguably, these declarations empower the ICC to exercise its jurisdiction over Rome Statute crimes committed on the territory of Ukraine by any person, including President Putin.
Russia signed the Rome Statute in 2000 and voted for the establishment of the ICC. However, it did not ratify the treaty establishing the ICC. Russia, therefore, never became a member of the ICC, and has remained outside the jurisdiction of the court. Indeed, in 2016, Russia proceeded to withdraw its signature from the ICC founding statute. It is not a state party to the Rome Statute. It follows, therefore, that Russia has no obligations under the Rome Statute.
There has been widespread discourse on the enforceability of the ICC warrant of arrest issued against President Putin, who is a national of Russia, a non-state party to the Rome Statute. Does the ICC have jurisdiction over Rome Statute crimes allegedly committed by a President of Russia?
On the question of head of state immunity, s 4(2) of the ICC Act provides that being a head of state or government is neither –
‘(i) a defence to a crime, nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime’ (see also s 232 of the Constitution). This provision appears to strip off President Putin’s immunity as head of state of Russia, in the context of the jurisdiction of SA. However, this could be contested on some grounds, namely, President Putin could argue that he does not recognise the flawed process of the issuance of the ICC warrant of arrest and could even initiate an action or an appeal before the ICC itself to contest the order. Some would argue that pending such action, if any, it is debatable that President Putin would be arrested in SA.
I submit that s 4(3)(a) of the ICC Act is SA’s reflection of article 27(2) of the Rome Statute, on the removal of the immunity of a head of state before the jurisdiction of the ICC. The said article provides that the statute ‘shall apply equally to all persons without any distinction based on official capacity’ (article 27(1)). It provides further that ‘in particular, official capacity as a head of state or government … shall in no case exempt a person from criminal responsibility under this Statute’ (article 27(1)). On this account, it would be argued that President Putin might not be entitled to invoke immunity of heads of state to forestall an arrest in SA.
It would appear that lessons can be drawn from the case of former Sudanese President Omar al-Bashir in SA, on the question of immunity of heads of state, and the experiences on how the government of South Africa and the ICC dealt with the related questions at the time (see ICC-02/05-01/09-302 ‘Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the court for the arrest and surrender of Omar Al-Bashir’ (www.icc-cpi.int/court-record, accessed 3-5-2023)).
Arguably, the official status of an individual as a head of state does not provide immunity against prosecution by the ICC and even by SA. However, powerful political considerations cannot be entirely divorced from this question.
On 25 April 2023, it was reported that President Cyril Ramaphosa announced that: ‘The governing party, the African National Congress, has taken [the] decision that it is prudent that South Africa should pull out of the ICC, largely because of the manner in which the ICC has been seen to be dealing with (these) [types] of problems’ (Carien du Plessis ‘South Africa to try to withdraw from ICC again – Ramaphosa’ (www.reuters.com, accessed 3-5-2023)). This statement was, however, immediately retracted by the Presidency, clarifying that indeed, on the contrary, the ANC National Executive body had resolved that SA would remain in the ICC, and advocate for equal treatment by the ICC (Siyabonga Mkhwanazi ‘ANC, Ramaphosa backtrack on ICC withdrawal’ (www.iol.co.za, accessed 3-5-2023)). This leaves the ANC with options, which may include spearheading the amendment of the relevant provisions of the ICC Act to remove the immunity clause. It could also attempt the removal of the clause requiring one year waiting period for withdrawal from the ICC. Given the majority that the ANC commands in Parliament, it is not in doubt that such amendments may be realised. The question now is whether that process would be realised before August 2023 when President Putin is expected to be visiting SA.
The long-standing cordial relations between the ANC and Russia cannot be gainsaid, and it is extremely unlikely that the executive would easily facilitate the arrest of President Putin. However, the legal position deriving from the Rome Statute, the applicable legislation in SA, and the jurisprudence of both the ICC and the South African courts, appear to be more inclined to fortify the position that immunity of heads of state is not available. Such a conclusion, however, cannot be absolutely guaranteed, because it is not prudent to predict the outcome of any court challenge that may be mounted by President Putin or any action that the government of SA may take to oust the immunity provision in the ICC Act.
It may be suggested that the ICC itself has demonstrated impartiality or fear in speedily dealing with investigations involving US and Israel, and thus has no moral authority to expect reciprocity in the enforcement of the Putin warrant. The SA executive is endowed with immense authority that could be invoked to ensure President Putin is protected when he attends the summit in SA.
Immunity of heads of state remain a very contentious issue in the realm of the international criminal law.
Dr Milton Owuor LLB LLM LLD (International Criminal Law) (UP) is a Senior Lecturer in international criminal law, international law, international human rights law, and constitutional law at STADIO School of Law. He is also Chair of the Expert Professorial Discourse Panel of the Centre for International Criminal Justice Africa (ICR Justice Centre).
This article was first published in De Rebus in 2023 (June) DR 39.
