DA clashes with Ramaphosa over Putin arrest

The DA has described as “startling” President Cyril Ramaphosa’s argument that arresting Vladimir Putin would be tantamount to a declaration of war against Russia.

The DA approached the Johannesburg high court in May asking it to compel the state to detain and surrender Putin to the International Criminal Court (ICC) when he arrives in SA to attend the Brics summit later this year. The ICC has accused Putin of deporting Ukrainian children to Russia, a war crime.

SA, as an ICC member, is obliged to arrest Putin if he arrives for the summit.

In its responding affidavit, the DA said Ramaphosa was asking the court to excuse the government from its international and domestic law obligations, because a foreign state was threatening SA with illegal war if it complied with those obligations. 

“Were such a threat to be given credence, it would be the end of the rule of law both in international law and domestic law,” said DA lawyer Elzanne Jonker in court papers.

“It would also be the end of SA’s sovereignty. Law would not rule. Brute might would rule. It is a tragedy that the president of a democratic SA, built on the rule of law, would make such submissions to a court,” she said.

‘Heinous crimes’

The DA argued that the individuals who are charged by the ICC often yield great political power and have access to considerable resources.

“They stand accused of the most heinous crimes that have been deemed an offence to the global community. There would be no enforcement in international law if everyone suspected of an international crime and who stood to be arrested was not arrested, because they threatened reprisal against any state that dared to comply with the law. 

“In such a case, there would never be justice for victims of war crimes, genocide and crimes against humanity.”

In this respect, the party said, it was worth emphasising that section 198(c) of the constitution expressly provides that “national security must be pursued in compliance with the law, including international law”.

This, the party says, further underlines the ongoing obligation on the government, even when concerned with issues of national security, to comply with the Rome Statute and the Implementation Act and the obligations they place on the government. 

Jonker said she agrees that any risk of armed conflict with Russia should be averted and the immediate and obvious solution to achieving this would be to “disinvite Putin from the Brics summit”.

“The president never suggests that Russia would declare war merely for removing Mr Putin from our guest list,” said Jonker.

She said the government found itself in an unenviable position, because it had failed to take a position.

“This is, with respect, a self-caused threat and does not excuse them from the duty to comply with their obligations.”

She said Ramaphosa himself gives an incomplete answer as to why he could not disinvite Putin.

“In paragraph 88 of the answering affidavit, he explains that once an invitation has been sent, due to courtesy and international relations, it cannot be withdrawn. Essentially, the position of the respondents is that it would be impolite or against the principles of comity to disinvite President Putin.” 

This is not a credible answer, said Jonker. 

Continuing to invite and receive a president of a state threatening SA with war merely for complying with its international law and domestic law obligations is plainly unlawful, irrational and unconstitutional, she said. Moreover, the threat of offending another state, can never justify the breach of the government’s legal obligations.

Jonker said the DA respects that there are ongoing diplomatic negotiations aimed at resolving the impasse, but these should occur within the context of compliance with the law. 

Ultimately, the law leaves only two options open to the government: ensure President Putin does not come to SA, or arrest him if he does. 

“It cannot lawfully negotiate any other position.” 

Jonker said while the DA noted efforts by Ramaphosa and other African heads of state to bring peace to Ukraine, the merits of those efforts do not allow the government to evade complying with its international and domestic law obligations.

“The rule of law and the constitution must govern any attempts to broker peace. There is no leeway for illegality. In the final analysis, the president’s argument advanced here is a slippery slope,” she said. 

Ramaphosa, in his answering affidavit, told the court that arresting Putin would be a declaration of war with Russia and that SA does not have the capacity nor appetite to fight Russia. He said a war with Russia would betray his constitutional duty to protect the sovereignty, peace and security of the republic.

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