21 July 2023 – Today, the High Court in Pretoria was due to hear the matter of Democratic Alliance v The President of South Africa and Others. The Court agreed to hear the Southern Africa Litigation Centre (SALC) and the International Commission of Jurists (ICJ) as joint amicus curiae (friends of the court). The matter was however settled between the parties prior to the hearing in which the state has agreed to apply for an arrest warrant for President Putin.
The case arises from the arrest warrant issued by the International Criminal Court (ICC) on 17 March 2023 against the President of the Russian Federation, Vladimir Putin, allegedly responsible for war crimes in connection with the armed conflict between the Russian Federation and Ukraine. President Putin was expected to travel to South Africa in August to attend a summit of the BRICS (Brazil, Russia, India, China and South Africa). South Africa, as a State party to the Rome Statute of the ICC, would be obliged to arrest and surrender President Putin to the ICC on his arrival in the country once requested by the ICC to do so.
In the State’s response to the DA’s application, President Ramaphosa raised the concern of a potential threat of a war with Russia as a reason not to arrest President Putin. He argued that an arrest of President Putin in South Africa would be interpreted by the Russian authorities as a ‘declaration of war’.
In this context, SALC and ICJ have been granted permission to intervene as friends of the court on the narrow legal issue around the potential ‘declaration of war’ and whether the President of South Africa would be justified in not complying with its obligations under the Rome Statute. SALC’s and ICJ’s submissions, sought to assist the High Court in its analysis of relevant international law. The submissions consider whether, and under what circumstances, South Africa would be justified in not complying with its obligations under the Rome Statute of the ICC to enforce the ICC’s arrest warrant.
Dr. Atilla Kisla, SALC’s International Justice Cluster Lead stated in that regard:
“Fighting impunity is hard work and difficult decisions must be made in line with South Africa’s international law obligations. While President Putin might not come to South Africa, the question of whether non-compliance with the Rome Statute can be justified in certain instances is an essential one that goes beyond this case. There are certain scenarios set out in international law under which that might be possible. This case is not one of them.”
Kaajal Ramjathan-Keogh, ICJ’s Africa Director emphasized that:
“It appears that the State was looking for reasons not to comply with its domestic and international obligations to arrest President Putin. A purported threat of war seems an extremely unlikely scenario, particularly when the State has presented no evidence that any such threat has been made by the Russian authorities against South Africa. Again, as in the Al Bashir case, the State was attempting to wriggle out of its international law obligations. This is an ongoing concern and we sought to intervene with SALC to ensure that South Africa does not facilitate impunity for war criminals”.
SALC and ICJ are represented by Adv Bonita Meyersfeld and Webber Wentzel.
Issued by the Southern Africa Litigation Centre and International Commission of Jurists