SIMON TAYLOR: Let’s be realistic when discussing arresting Vladimir Putin

A great deal of ink has been spilt in the wake of the International Criminal Court’s (ICC) arrest warrant for Vladimir Putin and the debate over what SA should do to comply with international law.

While there are certainly legal and moral merits to the claim that the Putin regime ought to answer for its actions in Ukraine, we need to first deal with the practical question of whether it is even possible to arrest, detain and extradite the sitting head of state of a foreign, nuclear-armed, permanent member of the UN Security Council while they are visiting a foreign state. The short answer is that international law often extends its reach beyond the realistic grasp.  

The problem for SA that has not changed since the saga of then Sudanese president Omar al-Bashir’s visit to SA, is that there is no established protocol for how to arrest a sitting of head of state. While there have been cases of former senior government officials, and even former heads of state, being prosecuted for war crimes, there is no precedent for dealing with a current head of state.

The previous cases before the ICC mostly involved rebel leaders. The trials of former Serbian leaders and military officers took a long time to begin as the arrests were the result of years of diplomatic negotiations, military-grade police operations and a great deal of luck. Ultimately, the extraditions of Slobodan Milošević and Ratko Mladić were brought about by the Serbian state, albeit with assistance from other regional and international organisations.  

As yet, no third-party state has ever arrested a sitting foreign leader. The UK detained Augusto Pinochet for a potential trial on human rights abuses, but he was eventually spirited back to Chile. Aside from the fact that the British government did not try to extradite him, Pinochet was also a former president at the time. The SA government is being asked to do something that has never even been tried before, with entirely unknown and potentially dire consequences. 

The status of a sitting head of state is extremely important for both the Putin and al-Bashir cases because when travelling abroad for official duties such individuals come under the purview of the Vienna Conventions on Diplomatic Relations and the ancient norm and legal principle of diplomatic immunity. To be an official representative of a foreign state in effect means the person is not an individual but an embodiment of a foreign state. In other words, an act against the individual is an act against that foreign state.

When Al-Bashir visited SA as a head of state he was not in the country as a tourist or conducting personal business; he came to SA as a physical representative of the state of Sudan. To arrest representatives is tantamount to arresting that state. While ICC judges may suggest visiting heads of state are not necessarily eligible to claim immunity, the established norm in international relations is that they are.

When it comes to matters of international relations norms often trump laws, because historically speaking such actions have been taken as declarations of war. Remembering that Russia has a nuclear arsenal, no sensible leader would consider taking such hostile action.  

The importance of norms is not merely semantics. Though the Supreme Court of Appeals in SA may well exercise legally sound judgment in ordering the government to arrest a visiting head of state, the home state would likely see things differently. In the case of Sudan the consequence for SA could be manageable, but any Russian retaliation could be catastrophic.  

Detaining Putin rests on the assumption that he could even be arrested. Ordinarily, foreign missions are entitled to security beyond that offered by specialised SA Police Service units. Representatives from some states bring their own security details. For example, the US Marine Corps is tasked with providing security for all US representatives abroad. Whenever the US president visits a foreign state entire planeloads of security equipment arrive beforehand.

This display of security is not only about practical security concerns. It is also performative, in the sense of demonstrating the military prowess of a powerful world leader. Much the same could be expected of Putin. There is a clip online of Putin in his presidential jet, with the camera panning to the window to show two state-of-the-art fighter jets flanking it, one on each side. In all likelihood the only South African who could even get close enough to put handcuffs on Putin would be President Cyril Ramaphosa when they shake hands.  

Arresting Putin like a common criminal is a pure fantasy. But would it even be possible to politely detain one of the world’s most powerful men? Even if Ramaphosa and the local police could somehow not let Putin leave whichever luxury hotel the delegation would stay in, how could any heavily armed, specially trained security unit prevent Russian security forces from extricating him? It is doubtful that any member of the SA National Defence Force or police would be willing to actually open fire on determined Russians.  

SA’s foreign policy and partnerships with the Brics bloc would be irreparably damaged if any arrest attempt was made, and yet for all their bluster none of the states expecting SA to arrest Putin are willing to step up to protect our interests. More immediately, would any other state be willing to defend SA sovereignty from the potential threats of a nuclear power? 

Indulging in this jurisprudential fantasy for a bit, what would the protocol be for extraditing Putin to The Hague? South Africans are well aware of the complexities of extraditing ordinary criminals, and how easily things can go awry in even the most straightforward of cases such as the failed extradition of the Guptas from Dubai.

Putting aside the legal hurdles involved, how would Putin be physically taken to the Netherlands? Any aircraft flying to Europe would have to cross the airspace of several sovereign African states and require their permission. Each would be subject to extreme pressure from Russia to force the aircraft to land.

Moreover, some states host Russian and Wagner Group military forces. In 2021 Belarus, a close ally of Russia, forced a commercial Ryanair flight to land so it could arrest a government critic, demonstrating a willingness and ability to do so. Would SA military or police personnel be responsible for the security of the extradition, or would another state be willing to take on such a high-stakes operation? If the Netherlands was to assume the role, handing over Putin to a Nato security detachment would most certainly risk a major military confrontation.   

The practicalities of each step of attempting to comply with the ICC’s warrant are so beyond the realm of reality that they cannot be taken seriously. This is not to argue the legal and moral merits of the warrant, but that any expectation that SA, as a minor power in the international system, could faithfully comply is patently absurd.

More realistically, the warrant is functionally intended to create difficulties for Russian foreign policy and further isolate the country. In light of this, threats of sanctions on SA’s economy or international standing if it fails to comply are as unfair as they are absurd.

SA is in effect being asked to be a guinea pig in a risky nuclear experiment. 

• Taylor, an extraordinary researcher at North West University who was a senior foreign service officer in the department of international relations & co-operation, has a PhD in international relations from the University of St Andrews. He writes in his personal capacity.