On 17 March 2023, the Pre-Trial Chamber II of the International Criminal Court issued arrest warrants for President Putin and Ms Maria Lvova-Belova 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 under the Rome Statute of the International Criminal Court (the Rome Statute). President Putin is due to attend the 15th BRICs summit in South Africa in August this year (2023).
South Africa is a signatory to the Rome Statute (on 17 July 1998) and ratified it on 27 November 2000. South Africa has also incorporated it into the domestic law of South Africa in terms of s 231(4) of the Constitution of South Africa (the Constitution) by enacting the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act).
State parties to the Rome Statute are under an obligation to cooperate and assist the ICC in the investigation and prosecution of crimes within its jurisdiction.[1] It seems to follow from this that South Africa is under an obligation to arrest President Putin if he attends the summit in South Africa and surrender him to the ICC. The question arises from this whether South Africa will arrest President Putin and surrender him to the ICC.
There is certainly complexity here – perhaps as there is an all law given that it is expressed in words which are often capable of different meanings. In what follows I set out some of the complexity in order to assist readers to follow what may be expected to be some of the more prominent arguments for and against whether South Africa is under an obligation to arrest President Putin.
I explain that South Africa may be in a unique position in that a precedent was set in its domestic law when President Al Bashir of Sudan visited the country in 2015 in the face of who existing and operative ICC warrants for his arrest and surrender. I discuss the problem of the apparent lack of a hierarchy of sources of law in international law and that this problem is compounded by an apparent internal conflict within the Rome Statute. I conclude that – at the level of international law – this problem looms large and unresolved. Nevertheless, I go on to discuss the position within South African domestic law.
I conclude finally that, although the law could and should be clearer, it seems that, on the law as it stands in South Africa at present, if President Putin visited South Africa, there would be an obligation on South African officials to arrest him and surrender him to the ICC.
South African Precedent
It is significant that there is a precedent in South African law, in the form of a judgment of the Supreme Court of Appeal (SCA),[2] following on the visit, in 2015, by President Al Bashir of Sudan, against whom the ICC had issued two warrants of arrest – one in 2009 on charges of war crimes and crimes against humanity and another in 2010 on charges of genocide. The warrants had been forwarded to South Africa as required. Significantly, Sudan, like Russia, is not a party to the Rome Statute.[3]
Upon the visit by President Al Bashir and his presence in South Africa, the Government of South Africa did nothing – it did not take any action to cause President Al Bashir to be arrested. This was challenged, first in the High Court, where the Government lost and was ordered to arrest and surrender President Al Bashir. The Government of South Africa appealed to the Supreme Court of Appeal – and lost again.[4] It is this judgment which declares what the law is in South Africa – and it is this law which binds South African officials.
Hierarchy in International Law
The prospect of the arrest of President Putin in South Africa has aroused controversy due to the question whether President Putin is not protected by diplomatic immunity arising out of customary international law. Customary international law is developed by the practices observed between nation states. Diplomatic immunity is a very well recognised doctrine which protects state representatives from possible spurious interference with their duties.
Whether President Putin may be arrested or not seems to depend on which source of law enjoys priority. If customary international law predominates over conventions (such as the Rome Statute),[5] he will be immune from arrest.
Thus it seems crucial to determine the hierarchy of sources of international law.[6] Some point to article 38(1) of the Statute of the International Court of Justice as the definitive word on the issue – as establishing that international conventions predominate over customary law. Article 38(1) reads as follows:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations ;
d. subject to the provisions of Article 59,[7] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Sadly though, it is not unreasonable to read this list as a list of valid sources of law, including, without any preference, conventions, customs, and general principles, and that only judicial decisions and teachings are of a subsidiary nature. The list does not resolve the matter in President Putin’s favour. However, there also appears to be nothing that resolves the matter in favour of the ICC.
Following on the attendance of President Al Bashir in South Africa in 2015, the SCA engaged with the issue of whether he enjoyed head of state immunity under customary international law in virtue of its prevalence over the Rome Statute. It was unable to resolve the question and concluded as follows:
In those circumstances I am unable to hold that at this stage of the development of customary international law there is an international crimes exception to the immunity and inviolability that heads of state enjoy when visiting foreign countries and before foreign national Courts.[8]
It would seem therefore that something else is required to break this deadlock.
An Internal Conflict within the Rome Statute
The problem of which source of law enjoys priority is compounded by an apparent internal conflict within the Rome Statute which could, depending on which provision ultimately prevails, permit a head of state to legitimately and effectively rely on his/her customary international law rights, and so, to claim immunity. As will be set out below in more detail, the internal conflict exists between article 27(1) which seems to exclude reliance on immunity and article 98(1) which appears to preserve head of state immunity.[9]
The obligation on a state to arrest and surrender a person who would ordinarily enjoy diplomatic immunity and against whom the ICC has issued an arrest warrant depends on article 27(1) of the Rome statute to overcome that immunity. This article provides:
This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
Arguably, therefore, under this provision, the Rome statute operates to the exclusion of head of state immunity.
Nevertheless, however clear article 27(1) might be, the provisions of article 98(1) seem to conflict with it. The provisions of article 98(1) read as follows:
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
(Emphasis added)
It is not clear what obligations the drafters of the statute had in mind which they sought to preserve and whether they sought to preserve (any) obligations against the rest of the statute – in particular, article 27(1).
On the face of it, there seems to be a direct conflict, at which point it would be immediately apparent that there can be no resolution unless one can, perhaps, by reference to principles of interpretation, read in some priority of one provision over the other.
Yet, on a closer look, one is invited to engage further. The wording of s 98(1) depends on whether there is an obligation in international law upon a state to recognise immunity. Since the obligation to recognise immunity derives from customary international law, it seems that the (apparent) conflict also reduces to the issue (discussed above) as to which source of law enjoys priority. As discussed above, this is a problem in itself, but if the (apparent) conflict in the Rome Statute between s 27(1) and s 98(1) reduces to the question relating to the hierarchy of sources of international law, then, at least, there is only one problem and not two – and the apparent conflict in the Rome Statute would be resolved and need no further attention.
However, this approach is beguiling and, it will be argued, ultimately creates a rather unkind circularity. This is because, given that the obligation to respect immunity derives from customary international law – the provision is conditional. It is conditional on whether s 27(1), as part of a convention, prevails over, s 98(1) which requires that one imports any obligation which a state may be under to afford immunity from customary international law.
If one assumes, for the sake of analysis, as a premise, that conventions prevail over customary law, the question appears – at first – to be whether a state is under an obligation to afford state immunity, which is rooted in customary international law, if there is a convention which precludes the recognition of that immunity. If this were the question, there would seem to be a straightforward answer that a state is under no obligation to afford immunity.
However, the real and mind-bending question seems rather to be whether a state is under an obligation to afford immunity, if there is a convention which precludes the recognition of that immunity, but where that same convention retains the obligation conditionally on whether it is under that obligation.
One would have to pursue the condition: is the state under the obligation under international law – and so one must look outside of the convention to whether the immunity must be observed. Outside of the convention, following the premise, the recognition of the immunity is inferior to the exclusion of the immunity where there is a convention excluding that immunity.
However, the true problem arises when one recognises that the convention which excludes any claim to immunity also seems to require one to consider whether a state is nevertheless under an obligation to recognise that immunity. The answer becomes self-referential – the answer begs the question.
This creates an impossible circularity from which there seems no escape and there seems then to be no answer, again, at international law, as to whether a state would indeed be under an obligation to recognise immunity even if the problem of which source of international law enjoys priority were resolved. There are, therefore, indeed two separate problems in international law and the conflict between s 27(1) and s98(1) is very real.
However, because of existence, within South African domestic law, of the statute (the Implementation Act) incorporating the Rome statute into South African law and the decision of the SCA declaring what it means, there is fairly clear guidance as to what the law is in South Africa. Thus we have guidance as to what obligations will fall on South African officials if President Putin visits South Africa.
Thus, it seems to follow that everything turns, again, on which source of international law enjoys priority. As discussed above, there seems to be no resolution to the issue. This means that – at the level of international law – there appears to be a lack of clarity as to what the law is. I do not purport to resolve this problem.
However, because of the existence, within South African domestic law, of the statute (the Implementation Act) incorporating the Rome statute into South African law and the decision of the SCA declaring what it means, there is fairly clear guidance as to what the law is in South Africa. Thus we have guidance as to what obligations will fall on South African officials if President Putin visits South Africa.
The Law of South Africa
As indicated above, the Supreme Court of Appeal of South Africa was unable to reach any conclusion as to what source of law – in international law – enjoyed priority.
It noted that head of state immunity was incorporated into domestic South African law by section 4(1)(a) of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA) which provides:
A head of State is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as –
(a) heads of State enjoy in accordance with the rules of customary international law …
However, according to the SCA, the adoption of the Rome Statute into South African law by the Implementation Act, changes everything.
Section 4(2) provides:
(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person—
(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or
(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, 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.
It is clear from this that, at least under South African law, a head of state does not enjoy immunity from prosecution. However, the specific wording is that head of state status cannot be raised as a defence or relied on to reduce any sentence imposed – notably, even this provision does not authorise the arrest of a head of state so that s/he may be presented for trial.
In response to this, the court relied on a principle of interpretation, long recognised in South African Law:[10]
The ordinary principle of interpretation is that the conferral of a power conveys with it all ancillary powers necessary to achieve the purpose of that power. The purpose of the power to prosecute international crimes in South Africa is to ensure that the perpetrators of such crimes do not go unpunished. In order to achieve that purpose it is necessary for the National Director of Public Prosecutions to have the power not only to prosecute perpetrators before our Courts, but, to that end, to bring them before our Courts.[11]
In response to the argument that the provisions of s 4(2) of the Implementation Act (excluding immunity) were in conflict with the provisions of s 4(1) of DIPA, the SCA resolved the apparent conflict, ultimately,[12] by recognising the provisions of s 4(1) of DIPA (providing immunity) as general in nature, while the provisions of s 4(2) of the Implementation Act (excluding immunity) as having specific application to the facts in issue, by reliance on the principle embodied in the maxim generalia specialibus non derogant (general words and rules do not derogate from special ones).[13]
It seems necessary to observe also that the provisions of s 4(2) of the Implementation Act expressly override any other law and so too, s 4(1) of DIPA. Section 4(2) commences with the following express statement, before it goes on to exclude immunity:
Despite any other law to the contrary, including customary and conventional international law …
This alone seems to exclude any reliance on immunity.
The Implementation Act at work
The real work in the judgment appears in the analysis of the provisions of the Implementation Act (sections 8-10) regulating the arrest and surrender of a person sought by the ICC.[14] What is significant to note in the discussion that follows, which is rather technical, is that the various officials identified in these sections enjoy no discretion – they must act.
Section 8 provides that a request for the arrest of a person, for whom a warrant of arrest has been issued by the ICC, must be referred to the Director-General: Justice and Constitutional Development,[15] who must, in turn, immediately place the request before a magistrate who must endorse the warrant of arrest for execution anywhere in South Africa.[16] The SCA observes that this was indeed done in respect of President Al Bashir and that the arrest warrant was still extant and operative.[17]
Section 9 provides, in relevant part,[18] that a warrant issued under section 8 must be executed, to the extent possible, in accordance with general criminal procedure in South Africa.
Under section 10(1), any person who is arrested must be brought before a magistrate (in whose jurisdiction the arrest took place). That magistrate must hold an inquiry to establish whether:
(a) the warrant applies to the person in question;
(b) the person has been arrested in accordance with the procedures laid down by domestic law; and
(c) the rights of the person, as contemplated in [the Bill of Rights], have been respected, if, and the extent to which, they are or may be applicable.
As the SCA notes, the relevant magistrate is limited to considering these three factors only. Whether the person enjoys immunity is not a listed consideration.
It may be argued[19] however that the issue of immunity may be imported, as a relevant consideration under the bill of rights, in virtue of the right to freedom and security of person (section 12 of the Constitution) and the right to freedom of movement (section 21 of the Constitution).
The response of the SCA to this argument is – at this point – perhaps not completely persuasive. It takes the view that since the Implementation Act provides for arrest in the circumstances, it follows necessarily that these rights are not infringed, or, if they are, any infringement is justified (under s 36 of the Constitution). Furthermore that the argument begs the question – whether a head of state enjoys immunity.
The existence of a statute in South African law which provides for the arrest of a person in certain circumstances cannot make it the case that the rights to freedom and security of person and to freedom of movement are either not infringed or, if they are, that any infringement is, necessarily justified.
Imagine, for instance, if the government of South Africa passed legislation according to which people who wore glasses were to be arrested and sterilised so as to prevent the genes responsible for poor eyesight from passing to the next generation. It would be no answer to a challenge to an arrest under such a statute to point to the existence of the statute as somehow, and necessarily, exempting the statute from infringing these and other rights, nor, to conclude that any infringement of any rights must be justified (under section 36 of the Constitution).
Nevertheless, however much this line of reasoning might be open to challenge, what follows does seem to be a conclusive answer. The SCA turns then to rely on section 10(9) of the Implementation Act, as follows:
It is here that s 10(9) assumes crucial importance because it deals with the very question of the relevance of claims to immunity to the order of surrender. It provides that:
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).’
The persons referred to in s 4(2) include a person who ‘is or was a head of State’. In other words it includes any person in the situation of President Al Bashir. So the fact that President Al Bashir was such a person would not have provided a ground for a magistrate not to make an order for his surrender in terms of s 10(5).[20]
For the sake of clarity, subsection 10(5) refers to any person who a magistrate (acting under section 10(1) (set out above) orders to be surrendered. Thus this critical section (section 10(9)) may be read as follows:
The fact that the person to be surrendered [is or was a head of state] does not constitute a ground for refusing to [order the surrender of that person to the ICC].
The SCA concluded then as follows:
I conclude therefore that when 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. …[21]
One might be left wondering then whether the fact that head of state immunity arises out of customary international law could not conceivably be relied upon to override the provisions of the Implementation Act – or at least to introduce a conflicting law into South African law so as to neutralise the effect of the Implementation Statute. Yet the SCA was alert to this possible argument. It proceeded as follows:
… [This conclusion] is wholly consistent with our commitment to human rights both at a national and an international level. And it does not undermine customary international law, which as a country we are entitled to depart from by statute as stated in s 232 of the Constitution. What is commendable is that it is a departure in a progressive direction.[22]
Thus, following upon the Implementation Act as espoused by the SCA, South African law governing its cooperation with the ICC excludes reliance upon customary law head of state immunity.
Conclusion
In conclusion, while the basis on which President Putin may be arrested if he were to attend the summit in August in South Africa is complex, the result seems inescapable. President Putin would not – as the law stands in South Africa – be able to rely on a head of state immunity to resist arrest and surrender to the ICC.
It is beyond the scope of this note, in which I have focused on what the law is in South Africa, to consider what the South African government could do to attempt to escape from these obligations.
Tangentially, however, presumably if the government of South Africa will seek to escape from these obligations, and waits until President Putin arrives in South Africa (assuming he does attend the summit in August 2023), it seems that it would have to apply for direct access to the Constitutional Court on an urgent basis. Neither direct access not urgent hearings are easily granted. Even an urgent approach for relief would leave time for diligent officials of the government, who are under an obligation to arrest President Putin as he steps off the plane, to arrest him. Thus, President Putin could be subjected to an arrest even if the government prevails in its case and it were ordered that he is released.
If the government sought to avert this risk – that President Putin may be arrested even for a short time (until its urgent approach for relief is heard and decided) – it would need to approach the Constitutional Court for direct access, on an urgent basis, for a declaratory order. This compounds the level of difficulty. As indicated, neither direct access nor urgent hearings are granted easily – and neither is a declaratory order.
The South African government is, on any scenario, in a predicament and, to speak colloquially, on its back foot. Given that it will need to persuade the Constitutional Court that the SCA was wrong on Al Bashir, whereas it appears that its unanimous judgment is logically compelling, one may wish to speak of it being on two back feet.
James Grant*
* B Proc LLB BA hons (psyc) PhD (law), Advocate of the High Court of South Africa.
Declaration: These are my thoughts alone – save where credited – it was written without the assistance of AI.
** I am indebted to Lilian Chenwi and Franziska Sucker for drawing my attention to the complexity of this issue in international law and for sharing their insightful articles (South Africa’s Competing Obligations in Relation to International Crimes, and Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification) with me – the full text of which they have kindly allowed me to make available on this site.
[1] Article 86 of the Rome Statute Provides: States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. See also the provisions of articles 87-89 and, on the enforcement of any punishment, see part 10 of the Rome Statute.
[2] The second highest Court in South Africa – second only to the Constitutional Court.
[3] Unlike President Putin however, President Al Bashir had been stripped of his head of state immunity by the Security Council in terms of Resolution 1593 (2005). This fact however does little real work in the judgment of the SCA.
[4] The government of South Africa initially appealed (again) to the Constitutional Court. However, it withdrew its appeal when it gave notice of withdrawal from the ICC. This notice was challenged and, after it was declared to be invalid, it was withdrawn. Thus, the precedent set in South Africa in respect of Al Bashir, is the judgment of the Supreme Court of Appeal.
[5] Such as the Rome Statute.
[6] See Lilian Chenwi and Franziska Sucker South Africa’s Competing Obligations in Relation to International Crimes (2015) 7 CCR 199 at 239.
[7] Article 59 reads: The decision of the Court has no binding force except between the parties and in respect of that particular case.
[8] Para 84. Notably the minority judgment (Ponnan JA (Lewis JA concurring) distanced itself from this statement on the basis that it was unnecessary (para 115).
[9] For a detailed analysis, see Lilian Chenwi and Franziska Sucker Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification VRÜ 2 2018 51 131 – 300 at 240.
[10] Middelburg Municipality v Gertzen 1914 AD 544 at 552.
[11] At para 95.
[12] The issues relating to DIPA were canvassed at paras 49-53 but left unanswered – to be answered later.
[13] Para 102. See paras 118-122 of the minority judgment in concurrence with the majority judgment.
[14] Para 96-102 of the majority judgment; paras 120-123 of the minority judgment (concurring).
[15] Section 8(1) reads as follows: Any request received from the Court for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Court must be referred to the [Director-General: Justice and Constitutional Development] and accompanied by such documents as may be necessary to satisfy a competent court in the Republic that there are sufficient grounds for the surrender of that person to the Court.
[16] Section 8(2) provides: The [Director-General: Justice and Constitutional Development] must immediately on receipt of that request, forward the request and accompanying documents to a magistrate who must endorse the warrant of arrest for execution in any part of the Republic.
[17] Para 96.
[18] Section 9(3) provides: Any warrant endorsed in terms of section 8 or issued in terms of subsection (2) must be in the form and executed in a manner as near as possible to what may be prescribed in respect of warrants of arrest in general by or under the laws of [South Africa] relating to criminal procedure.
[19] As it was, on behalf of the government of South Africa, in defense of its failure to arrest President Al Bashir (para 99).
[20] Para 100.
[21] At para 103.
[22] At para 103. Significantly, section 232 provides: ‘Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. The Implementation Act, is, of course, an Act of Parliament.
[23] See under the heading ‘An Internal Conflict within the Rome Statute.