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Court action by the DA unlikely to lead to Putin’s arrest, experts say

Russian President Vladimir Putin with an ear piece in his ear is seated during a meeting

Russian President Vladimir Putin attends a meeting at the Kremlin in Moscow this week. The DA has brought legal action asking for the court to hand down an order stating the steps that the South African government must take if Putin arrives in South Africa to attend the BRICS summit and if it receives a request from the ICC to arrest him. Picture: AFP

Published Jun 1, 2023


Durban - Court action to compel the South African government to arrest Russian President Vladimir Putin when he arrives in August for the BRICS summit is unlikely to lead to his arrest.

This comes as the Department of International Relations and Co-operation (Dirco) has yet to make a decision on what to do about the International Criminal Court (ICC) warrant of arrest issued for Putin.

The ICC, of which South Africa is a full member, issued a warrant of arrest against Putin for alleged war crimes related to the abduction of children from Ukraine.

South Africa, a signatory to the Rome Statute, has adopted a non-aligned stance on the Russia-Ukraine war.

The DA said it had launched a court application in the Gauteng High Court requesting a declaratory order to the effect that if Putin arrives in South Africa to attend the BRICS summit, and upon receipt of a request from the ICC to arrest Putin, the South African government must immediately detain and surrender him to the ICC.

DA MP Glynnis Breytenbach, in a statement, said the party was launching this action to avoid a repeat of the saga involving former Sudanese President Omar al-Bashir, who was subject to an ICC arrest warrant but was not arrested when he visited the country in 2015.

“This pre-emptory court action aims to ensure that South Africa upholds its obligations in terms of the Rome Statute of the International Criminal Court. The DA’s court application outlines the precise steps to be taken should a request for President Putin’s arrest and surrender be forthcoming from the ICC. These steps include that the director-general of Justice and Constitutional Development must immediately forward the request to a magistrate in terms of section 8(2) of the Implementation Act.”

International Relations and Co-operation Minister Naledi Pandor on Monday granted immunity to all delegates who are expected to attend the BRICS ministerial meeting in Cape Town from today, and the BRICS summit from August 22 to 24.

However, Dirco pointed out that this was a standard process in international relations and did not override any international arrest warrants.

International relations expert Dr Chido Nyere from the Institute for Pan-African Thought and Conversation at the University of Johannesburg said it was not possible for Putin to be arrested in South Africa.

“A court may make a pronouncement on the legal aspect but this is not a legal case. It is actually a political case and the law has limitations. It is a very complex case and courts are limited.

“The US, which appears to be exerting pressure for Putin’s arrest, is not a signatory of this statute.

“Any attempt to arrest Putin has to work on a co-operative basis and Putin is on record saying he will attend the BRICS summit in August,” said Nyere.

Professor Dire Tladi from the University of Pretoria’s Department of Public Law said while legally it was possible to arrest Putin, politically it was not possible.

“As a matter of law, unless the government is able to successfully challenge the purported request for a declaratory order by the DA, then as a matter of law there would be an obligation to arrest.

“If the DA receives a declaratory order that says Putin must be arrested then, as a matter of law, when Putin arrives there would be an obligation to arrest.

“If it doesn’t happen, the question that would then arise is whether or not there has been a wilful disregard of a judicial decision and therefore contempt of court proceedings may take place.”