1. Introduction
South Africa is again at the centre of controversy regarding the obligation to arrest a sitting head of state pursuant to an arrest warrant of the International Criminal Court. Previously, the South African government was held by both the ICC and domestic courts to have violated its international and domestic law obligations by failing to execute the ICC arrest warrant against then-President Bashir of Sudan during his visit to the 2015 AU Summit held in South Africa (see Dapo Akande’s discussion here). Now, President Putin has reportedly been invited to visit South Africa for the BRICS Summit in August 2023. Putin is currently the subject of an ICC arrest warrant for war crimes (see here and here).
This contribution focusses on South African domestic law that will influence (but not necessarily determine) the Executive’s decision whether (i) to persist in inviting Putin to visit South Africa, and/ or (ii) to attempt to execute the ICC arrest warrant should he do so. In some respects, South Africa is an ideal partner for the ICC given its expansive legislation asserting domestic jurisdiction over international crimes and denying immunity therefor (see below). In the past, however, the Executive has chosen to flaunt its cooperation obligations under the ICC in the face of international and domestic judicial sanction. South Africa therefore appears to be somewhat Janus-faced in the field of international criminal justice. How will it present itself to the world on this occasion?
2. Didn’t South Africa leave the ICC?
As I discussed here previously, in 2016 the South African Executive under President Zuma attempted to withdraw from the ICC. After its failure to arrest Bashir, the Minister of International Relations and Cooperation issued official notice of South Africa’s intention to withdraw, attempting to initiate the 12-month exit period (Art 127 of the Rome Statute). However, following a legal challenge by the official opposition, this was held to be unconstitutional and invalid: the South African High Court held in the Democratic Alliance case (2017) that, according to section 231 of the South African Constitution, parliamentary approval was required for South Africa to withdraw from any treaty that had been ratified by Parliament upon joining the treaty. Given that the African National Congress held both the Presidency and a majority in Parliament, there was no appeal of this decision. Rather, the International Crimes Bill 2017 was introduced that, if passed, would give legislative approval to withdraw from the ICC. The Bill would also replace the provision for domestic jurisdiction over international crimes in the South African Implementation of the Rome Statute of the International Criminal Court Act of 2012 (‘ICC Act’).
After several years of inaction, on 10 March 2023, the government withdrew the International Crimes Bill. No official announcement or reasons were given. Later, a Justice Department spokesperson stated “Among those factors [in deciding to remain a member] was the consideration that SA was one of the leading countries which had championed the Rome Statute.” The Justice Department added that previous calls for mass African withdrawal from the ICC in the wake of the Bashir arrest warrant, and other forms of “robust engagement had positively impacted and contributed to the ICC being substantively reformed for the better”.
The arrest warrant for Putin was issued on 17 March 2023, one week after the withdrawal of the International Crimes Bill. The South African government may therefore regret its action. Nonetheless, no suggestion has yet been made to revive efforts to leave the Court.
However, should the government decide to consider ICC withdrawal anew, it may wish to challenge the reasoning in the Democratic Alliance case. The requirement of parliamentary approval for withdrawal from any ratified treaty is onerous, particularly considering the Constitution’s silence on the matter of treaty exit. This is a broader requirement of parliamentary approval than in certain other jurisdictions. For instance, in Miller (2017), the United Kingdom Supreme Court held that parliamentary approval was required in cases of treaty withdrawal resulting in fundamental constitutional changes that the executive did not have the power to effect unilaterally (as I discuss in more detail here and here). As this is a question of significant constitutional importance, it is worthy of attention by South African appellate courts. In any event, given South Africa’s ICC membership at the time of the issuance of the arrest warrant against Putin, its international obligation to arrest would persist even if it were now to withdraw from the ICC (Art 127(2) Rome Statute).
3. ICC Arrest Warrants in South African Law
The South African ICC Act establishes domestic procedures for the enforcement of ICC arrest warrants, echoing those prescribed in Art 59 of the Rome Statute. There is no room for discretion or political involvement. South African law makes the endorsement and execution of all ICC arrest warrants mandatory (s 8 ICC Act). Once arrested, the detained person must appear for a judicial inquiry to decide on surrender to the ICC. However, as required by Art 59(2) Rome Statute, this inquiry is limited to three questions: whether (i) the warrant applies to the individual in question; (ii) his or her arrest has been carried out according to prescribed domestic procedures; and (iii) constitutional rights have been respected (s 10(1) ICC Act). If so, the magistrate is then obliged to authorise surrender to the ICC (s 10(5) ICC Act).
It has been suggested by some commentators in South Africa that this procedure should facilitate executive involvement, to account for potential political ramifications. This would not be possible without legislative amendment. It would also undermine South Africa’s compliance with its obligations under the Rome Statute. Further, the Constitutional Court has held that diplomatic considerations cannot justify violations of the SA ICC Act. It noted in the Southern African Litigation Centre case (2014) that “political inter-state tensions are, in most instances, virtually unavoidable as far as the application of universality, the Rome Statute and…the ICC Act is concerned” (para 74).
4. Immunity under South African Law
Perhaps the most controversial aspect of the arrest warrant against Putin is the question of immunity. As a sitting head of State of a non-ICC State party, and without a Security Council referral to the ICC, many might wonder whether he should benefit from immunity ratione personae under customary international law. After all, while Art 27(2) of the Rome Statute rejects immunity as a bar to the exercise of the Court’s jurisdiction, Art 98 explicitly preserves “State or diplomatic immunity” of “third States”. After some prevarication by the Pre-Trial Chambers, the ICC Appeals Chamber held in Al Bashir: “There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court” (para 113). Further, the Appeals Chamber also held that this denial of immunity applied to ‘horizontal’ relations between States when seeking to enforce ICC arrest warrants domestically. This judgment has not met with universal approval. Among other criticisms, this interpretation “in violation of principles of treaty interpretation, seem[s] to render Article 98 redundant”. The arrest warrant against Putin is the first test of this expansive denial of immunity.
South African courts have gone even further. Considering the Executive’s failure to arrest Bashir in 2015, the Supreme Court of Appeal (‘SCA’) held in Minister of Justice v SALC (2016) that the South African ICC Act abolished all forms of immunity in relation to international crimes in the South African domestic legal system.
First, it held that there is no immunity when implementing an ICC arrest warrant, relying on s 10(9) of the ICC Act. This provides:
The fact that the person to be surrendered is a person contemplated in section 4 (2)(a) or (b) does not constitute a ground for refusing to issue an order contemplated in subsection (5) [for surrender to the ICC for prosecution or sentencing].
Section 4(2)(a) states, in relevant part:
Despite any other law to the contrary, Including customary and international law, the fact that a person –
(a) is or was a head of State or government, a member of a government or parliament…
is neither –
- a defence to a crime; nor
- a ground for any possible reduction of sentence once a person has been convicted of a crime.
The SCA held “the fact that President Al Bashir was such a person [a Head of State as set out in s4(2)(a)] would not have provided a ground for a magistrate not to make an order for his surrender in terms of s 10(5)” (para 100). Whether or not the State in question is a party to the Rome Statute, or subject to Security Council referral, is irrelevant.
The court did not stop there. The SCA then relied on s 4(2)(a) to hold that the ICC Act denied all immunity even in the case of a domestic investigation or prosecution:
[W]hen South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made.
According to the SCA, this provision overrides customary international law Head of State immunity (as set out by the International Court of Justice in the Arrest Warrant case), which had been codified in s 4(1)(a) of the South African Diplomatic Immunities and Privileges Act 2001 (‘DIPA’). Wallis JA described this as a “progressive” departure from custom (para 103).
Thus, as it stands, the ICC arrest warrant against Putin is valid and enforceable in South Africa. No immunity would be afforded to him. Nonetheless, there are further considerations.
First, the Constitutional Court has not proclaimed on the immunity issue. The government, therefore, may take the view that Wallis JA’s interpretation of the ICC Act is an over-broad denial of immunity. This may have traction in relation to domestic prosecutions. The s 10(9) reasoning concerning ICC arrest warrants, however, may be difficult to overturn on a textual basis. Nonetheless, as noted above, reaction to the ICC Appeals Chamber’s decision in Al Bashir was divided (see, eg, here and here). An argument before the Constitutional Court that Putin is entitled to immunity under customary international law vis-à-vis the ICC and/or domestic legal action to enforce the ICC arrest warrant may not be implausible. Notably, s 232 of the South African Constitution makes customary international law automatically a part of domestic law, if not contrary to legislation or the Constitution. Further, s 233 requires all legislation to be interpreted compatibly with international law (both treaty and customary international law). Domestic courts are put in a difficult position if it is felt that treaty obligations under the Rome Statute are inconsistent with customary international obligations on immunity.
Second, DIPA permits the government to grant immunity on a case-by-case basis to foreign officials. DIPA empowers the Minister to grant immunity based on an agreement with a foreign State or international organisation (s 7(1)) or to do so unilaterally through notice in the Government Gazette (s 7(2)). Such individualised immunities can be granted, inter alia, to Heads of State (s 4(1)(b) and (c)), any state representative (s 4(2)(b) and (c)), or representatives of states or international organisations for the duration of an international conference held in South Africa (s 6(1)(b) and (c)).
It is conceivable that the South African government may grant immunity to Putin on this basis. Indeed, it had attempted to so justify Bashir’s immunity during his participation in the AU Summit in 2015. At the time, the courts held that the terms in which the Minister had gazetted the South Africa – AU immunity agreement gave immunity only to AU officials and not AU Heads of State. However, the SCA did not indicate that a grant of immunity under DIPA to a Head of State in these circumstances (i.e., when subject to an ICC arrest warrant) was impermissible. Thus, even if the interpretation of the SA ICC Act goes unchallenged, it may be possible to accord Putin immunity for the purposes of the BRICS Summit, or even longer.
Of course, providing for Putin’s immunity either through a reinterpretation of the SA ICC Act, or through DIPA, would not absolve South Africa of its international obligation to arrest and surrender him to the ICC under the Rome Statute. Domestic law cannot justify non-compliance with international duties (Art 27 VCLT). However, if South Africa finds itself repeatedly unwilling or unable to carry out ICC arrest warrants, it may need to reconsider membership of the Court.
5. Conclusion
The South African legal framework, after the Bashir saga, is in some ways ideally suited to the enforcement of the ICC arrest warrant against Putin. Yet, from the perspective of domestic law, there is still room for the government to manoeuvre should it wish to do so. It should also be recognised that by issuing an arrest warrant against a sitting Head of State of a non-party State in the absence of a Security Council referral, the ICC is putting States such as South Africa in a difficult position – both legally and politically. After the Bashir experience, South Africa prompted the establishment of a Working Group of the ICC Assembly of State Parties on implementation of Article 97 of the Rome Statute. This provision is meant to facilitate consultations between ICC member states and the ICC in cases where a member believes, inter alia, its cooperation obligations are inconsistent with obligations owed to other States. Alongside considering its domestic legal options, South Africa would do well to engage the ICC through this mechanism. Hopefully, a resolution can be found that will avoid another direct confrontation between South Africa and the ICC as the BRICS Summit approaches. As a colleague recently asked, couldn’t BRICS just have a Zoom meeting?