The Putin-South Africa arrest warrant saga: A tale of the shrinking world of an accused war criminal

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Since March of this year, the travel plans of one particular accused war criminal have been the subject of much speculation and legal debate. On 17 March 2023, the ICC announced that it had issued an arrest warrant for President Putin (and one of his officials – Ms Lvova-Belova). This, unsurprisingly, occasioned world-wide interest and attention. One focus of this was President Putin’s invitation, together with other heads of state, to attend the August 2023 BRICS Summit hosted in South Africa – an ICC Rome Statute state party. Politicians, political pundits, journalists, scholars, and lawyers began to ask: Will Putin attend the Summit, or won’t he? If he does, will South Africa arrest him? If it doesn’t, wouldn’t South Africa violate its international and domestic legal obligations?

In the face of repeated refusals by the South African government openly to accept that it would comply with its obligations to arrest President Putin, in May 2023, the Democratic Alliance (the DA), the official parliamentary opposition, launched an urgent application in the Pretoria High Court (the Putin matter). In that application, the DA sought declaratory and interdictory relief: asking the High Court to confirm South Africa’s obligation to arrest President Putin, and ensuring that the necessary steps were taken to domesticate and execute the ICC arrest warrant. Various international and domestic NGOs joined the litigation as friends of the court (amici curiae), broadly supporting the DA’s relief (these included Amnesty International, Human Rights Watch, the International Commission of Jurists and the Southern African Litigation Centre). The matter was ultimately concluded by way of an agreed Court Order, which we discuss below.  We acted for the DA in the matter as counsel.

As has now been well reported, South Africa’s President has announced that President Putin would no longer be attending the BRICS summit in person (the only one of five BRICS heads of state not to do so).

Now that President Putin will no longer attend the BRICS summit in person, it is useful to briefly traverse some of the pertinent facts leading up to this extraordinary turn of events. We do this because, over the last few months there has been much speculation as to what the ICC would do, or had done, and what state parties in general, and South Africa in particular, might do and would be legally obligated to do.

This reflection is important, because the situation in respect of President Putin is a first for the ICC and its states parties in several respects. This is the first arrest warrant issued in respect of a sitting head of state of a non-state party where the situation has not been referred to the ICC by the Security Council (and in that regard is different from the position with regard to the warrant issued for then Sudanese President Omar Al Bashir). It is the first arrest warrant issued by an international criminal tribunal for a sitting head of state of a permanent security council member. And it entails member states or the ICC itself facing threats of war or other actions, should they proceed to comply with their duties to arrest an accused (see the ICC response to such threats here). 

But the ICC has not made publicly available any of its determinations concerning the Putin arrest warrant, nor its requests for cooperation in respect of Mr Putin, and the arrest warrant itself has remained confidential (see here). This is in contrast to the approach taken in relation to the arrest warrants, decisions, and requests for cooperation in respect of then President Al Bashir of Sudan (see here)

However, the Putin matter has shed light on many of these issues and the ICC’s own attitude and approach. While the South African government sought to keep confidential (pursuant to Article 87(3)), all the papers filed in the matter, the Full Court (three judges) of the Pretoria High Court, having heard full argument (and received written submissions from a public interest amicus), refused to uphold the claimed confidentiality.  The Court ordered that all the papers filed in the matter had to be made public.

It is, therefore, useful, as we do in this post, to briefly tell the story of this litigation and what it reveals about the ICC’s actions and attitude in relation to President Putin’s arrest. We don’t engage with the fascinating legal issues: others have already done so, and will continue to do so (see on EJIL:Talk!, for instance, posts by Sergey Vasiliev, Miles Jackson, and Hannah Woolaver).

In Vasiliev’s post, of 20 March 2023, he speculated that it was ‘quite possible that the cooperation requests for the arrest and surrender of Putin (and Lvova-Belova) have already been or will shortly be transmitted to States Parties, placing Putin (and Lvova-Belova) under the risk of arrest abroad.’  

But the ICC has still (some months later) made no public announcement regarding whether it issued any requests for cooperation concerning Putin, what type, and to which states. As of today, its website provides no reference to any requests to cooperation being issued.

However, in an affidavit filed in the Pretoria Court in the Putin matter one day before the matter was to be argued on 21 July 2023, the South African government disclosed that on 2 May 2023, the South African Embassy in The Hague received a Note Verbale from the Registry of the ICC containing two requests for cooperation directed to all States Parties to the ICC in relation to the provisional arrest of President Putin and Ms Lvova-Belova.

This revealed for the first time openly, that at the latest by early May 2023 the ICC did indeed transmit requests for cooperation to all states parties in respect of President Putin’s and Ms Lvova-Belova’s arrest. Interestingly, the request for cooperation in respect of President Putin was a request to South Africa for provisional arrest (in terms of Article 92), rather than for arrest and surrender (in terms of Article 89). Perhaps this was because at the time there was a concern that President Putin would be imminently traveling abroad, which necessitated an urgent request. This can be contrasted with what occurred in respect of then President Al Bashir. There the ICC sent requests for arrest and surrender to all state parties.

The court papers also showed that, at some point, after receiving the request, South Africa entered into Article 97 consultations with the ICC. The government’s affidavits filed in the Pretoria Court do not expressly say what issues were raised by South Africa before the ICC. However, the President does say on affidavit that ‘Russia has made it clear that the arrest of President Putin would be a declaration of war against Russia.’ (see here). The President simply refers to news articles that indicate that this might be Russia’s position (see e.g. here), rather than suggesting having received a direct communication from Russia.  The President seems to suggest that this alleged threat of war if President Putin were to be arrested was one of the issues that may have been raised with the ICC. The President also appears to indicate in that same affidavit that Article 98 issues regarding immunity may also have been raised with the ICC.

While the Putin matter did not expressly reveal what issues were in fact raised with the ICC, what it does disclose is the outcome of that engagement. In the Order made by agreement between the DA and the Government before the Pretoria High Court, the litigation was brought to an end, and the Government tendered all of the DA’s litigation costs. In that order it was publicly recorded that:

“The International Criminal Court has concluded the article 97 consultations, and confirmed that the Republic of South Africa, and all other state parties, are obligated to arrest President Putin in terms of the ICC’s arrest warrant and requests for cooperation.”

That was the only feature of the engagement that the South African government was willing to have recorded publicly. By contrast, the ICC’s Pre-trial Chamber’s decision was neither made public nor formally filed with the Pretoria Court.

However, the terms of the Court Order at least makes clear that the Article 97 engagements had been finalised with a determination by the ICC confirming that South Africa and all states parties were required to arrest President Putin pursuant to the ICC arrest warrant and its request for cooperation. This must mean that the ICC did not accept South Africa’s submissions as to why it should be relieved of its obligation to arrest President Putin (whether because of alleged threats of war, issues of immunity, or otherwise).

Fortunately, the South African government (given the ICC’s definitive finding, and no doubt mindful of the Putin matter litigation) belatedly took the necessary steps to domesticate the ICC arrest warrant, so that should Putin ever enter South Africa, he would be arrested. In this regard, the Court Order also recorded that:

“[The Director-General: Department of Justice and Constitutional Development] on 29 June 2023, signed a letter forwarding the ICC’s request for cooperation to the National Director for Public Prosecutions (NDPP) to apply for an arrest warrant for President Putin in terms of section 9(1) of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, which was sent to the NDPP by his office on 17 July 2023.”

Unsurprisingly, it was then publicly revealed on 19 July that President Putin would no longer be attending the BRICS summit in August. This, coupled with the ICC’s determination confirming that all states parties, not just South Africa, are obligated to arrest President Putin (despite any issues raised by South Africa), are matters of no small moment for international justice and the fight against impunity. Even if we are still a long way away from seeing President Putin standing trial for war crimes, the world has become a much smaller place for him.

Editor’s Note: The authors acted as counsel for the Democratic Alliance in the proceedings described in this post.

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Matthias Zechariah says

August 20, 2023

This is a very interesting post. So long as African Heads of State and Government keep being ambivalent and hypocritical about the entrenchment of international criminal justice within and outside the continent, Africa will remain a dumping ground for the fugitives of justice. Despite the criticisms levelled against the ICC that it targets only Africans and/or African leaders, to the best of my knowledge, there is no single functional African-bred international criminal court. Where is the Criminal Chamber of the African Court of Justice and Human and Peoples' Rights? By inference, therefore, impunity is being encouraged, while alleged war criminals like Russia's Putin take undue advantage of this compromised atmosphere to expand the coast of their bullying and colonial-like exploitation. I commend the gallant efforts by the DA, its counsel and the friends of the court. If only we can minimize the space for fugitives of justice, we will have saved a life or two. Yes, let's say with Plessis and Coutsoudis that the world is shrinking for the accused war criminal. Ukraine is just one of the many instances where the dignity of humanity has been horrendously cheapened. Let's stop this the best way we can, even within our limited worlds.