In March 2023, the international legal arena witnessed an unprecedented case as the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin, marking the first time a sitting head of state from a non-state party faced such action without a Security Council referral. This pivotal development raised complex questions, especially when combined with President Putin's invitation to South Africa for the BRICS Summit in August 2023. This analysis delves into the intricate legal implications of South Africa's obligations to comply with the ICC Arrest in the face of the ratione personae, a form of immunity enjoyed by top-level state representatives, such as a head of state like President Putin. Comparing this situation to the prior case of Sudan's President Bashir, it examines South Africa's evolving stance on immunity, tilting toward the universal jurisdiction of the International Criminal Court.
On March 17, 2023, the ICC found credible grounds to suspect that Russian President Putin and Children’s Rights Ombudswoman Lvova-Belova were involved in war crimes, specifically, the unlawful deportation of the population i.e. the unauthorized transfer of children from the Ukrainian territories to Russia, as stipulated in Article 8(2)(a)(vii) and (b)(viii) of the ICC Statute. Eventually, the court issued the arrest warrants against those individuals.
With the invitation extended to Putin on the occasion of the BRICS Summit, South Africa found itself once again embroiled in a contentious debate surrounding the imperative to apprehend a sitting head of state in response to an ICC arrest warrant. In a prior instance, both the ICC and domestic courts denounced the South African government for contravening its international and domestic legal duties when it failed to execute the ICC arrest warrant against then-President Bashir of Sudan during his attendance at the 2015 AU Summit held in South Africa. A new controversy has emerged following the invitation extended to President Putin to attend the August 2023 BRICS Summit in South Africa.
What has distinguished the current invitation from the previous Bashir case is manifold. The current arrest warrant by ICC pertains to a sitting head of state of a non-state party. Moreover, unlike the case in Sudan, the current matter has not been referred to the ICC by the UN Security Council. Finally, the arrest warrant is also unique in the sense that it was issued by an international criminal tribunal for a sitting head of state of a permanent member of the UN Security Council.
Despite its obligation under the Statute and its domestic law, the South African government opted for paving the way for Bashir’s narrow escape from Pretoria in 2015. Considering the above-cited circumstances around the current arrest warrant against Putin, it was already expected that South Africa would not put itself in a difficult choice. Despite Article 98 of the Rome Statute preserving “State or diplomatic immunity” of “third States,” the stipulation in Article 27(2) in favor of the Court’s jurisdiction is clear:
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”
Furthermore, in the Bashir case, the ICC Appeals Chamber established that 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 and that this denial of immunity applies to ‘horizontal’ relations between States when seeking to enforce ICC arrest warrants domestically (para 113). South African courts have taken an even more extensive step. In light of the Executive's inability to apprehend Al Bashir in 2015, South Africa’s Supreme Court of Appeal ruled in the case of Minister of Justice v. SALC (2016) that the South African ICC Act abolished all types of immunity concerning international crimes within the South African domestic legal framework.
Unsurprisingly, in line with the Rome Statute as well as the jurisprudence of the ICC and the Supreme Court of Appeal, the South African government initiated the process to transpose the ICC arrest warrant into its domestic law, so that had Putin ever entered South Africa, he would be arrested. These judicial steps were followed by an announcement on 19 July that President Putin would no longer attend the BRICS summit in August. While the issue of by whom and how an ICC arrest warrant will be executed remains uncertain, these developments underscore the evolving landscape of international justice and the shrinking space for impunity on the global stage.
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