EMILE MYBURGH: Here's some advice for the international relations department, pro bono

We have been waiting a while now for the promised legal opinion the department of international relations & co-operation said it had commissioned on whether SA is obliged to arrest Russian President Vladimir Putin should he set foot in the country.

The department’s recent declaration providing diplomatic immunity to attendees of both the Brics meetings in SA in 2023 seems to indicate that it has either received very flimsy legal opinion, or none at all. With that in mind, and with 20 years’ experience advising foreign embassies, I have taken it on myself to provide this legal opinion for free, as part of my obligation as an attorney to provide 24 hours of pro bono service to the needy each year. 

Let’s start with the facts. SA has been a signatory to the Rome Convention on the International Criminal Court (ICC) — which is tasked with investigating war crimes and crimes against humanity — since 2002, when it promulgated the Implementation Act. The ICC has issued an arrest warrant for Putin for alleged war crimes committed during Russia’s continued unprovoked invasion of Ukraine. The Rome Convention requires signatory states to assist the ICC by, among other things, arresting people against whom the ICC has issued arrest warrants.  

The question is: is SA obliged to arrest Putin should he step off his shiny Ilyushin presidential jet at Waterkloof?  The short answer is “yes”, but it would seem that the department prefers a long answer, the standard and frustrating “it depends” that lawyers are infamous for, in the hope of insinuating that there is some room for manoeuvre. 

The Supreme Court of Appeal made it clear in 2016, the case of Minister of Justice & Constitutional Development v Southern Africa Litigation Centre (the infamous Omar al-Bashir case) that visiting heads of state do not have immunity against ICC arrest warrants in SA. The Implementation Act removed all immunities, even those conferred in terms of the Diplomatic Immunities & Privileges Act of 2001. Article 27 of the statute is emphatic: “This statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government ... shall in no case exempt a person from criminal responsibility under this statute.”

In other words, should Putin (or any other head of state over whose head hangs an ICC arrest warrant) set foot in SA, we will be obliged to arrest him and hand him over to the ICC. It is rather comical that international relations & co-operation minister Naledi Pandor deemed it fit to concede diplomatic immunity to attendees of the Brics conferences.

Firstly, heads of state automatically enjoy diplomatic immunity by virtue of their positions — they don’t need SA to concede it to them. Secondly, the concession of diplomatic immunity would apply only to the lesser minions brought along by the heads of state, insofar as they may not already have diplomatic immunity. Many probably already have diplomatic immunity, making the concession of diplomatic immunity superfluous and rather silly. 

One can only assume that Pandor hoped that making a show of granting diplomatic immunity to the Brics attendees would somehow relieve SA of its obligation to arrest Putin, allowing her to wash her hands afterwards by saying once diplomatic immunity had been granted war criminals could safely roam our shores. If so, she was wrong in her assumption.

Pandor should also take note of recent developments in international law, whereby diplomatic immunity has been steadily eroded in many fields. For example, embassies and other foreign missions do not enjoy diplomatic immunity in labour cases brought by administrative staff of those missions, which means if an embassy unfairly sacks, say, a receptionist or driver, the Commission for Conciliation, Mediation & Arbitration and labour court can rule against the embassy concerned and award compensation to the employee. Removing the immunity of international war crimes suspects is thus in line with recent developments in international law. This is surely something the department’s legal advisers must know. 

The Implementation Act and the statute make it an offence for anyone who “impedes, intimidates or corruptly influences an official of the court for the purpose of forcing or persuading the official not to perform, or to perform his or her duties improperly”.  Not enforcing an ICC arrest warrant can easily be construed as impeding an official of the court from enforcing their duties, potentially making SA government officials accessories to war crimes and liable to be charged with war crimes themselves.

One of the consequences of being convicted as a war criminal is that the accused can be ordered to pay reparations to the victims of the atrocities. It is not a far cry to make out a case that whoever fails to enforce the ICC arrest warrant, such as Pandor herself or maybe the national commissioner of the SA Police Service, could be ordered by an SA court to pay reparations to Ukrainian victims of Russia’s war. Article 75 of the statute makes it clear that such a right to reparations is not limited only to a continuing matter at the ICC; it can be pursued in a national court. 

The SA legal position is clear. We have to arrest Putin should he set foot here. No matter what contorted legal arguments the SA government comes up with — and no doubt there are others in the pipeline — they will not absolve SA of this obligation. The people tasked with implementing and executing the arrest warrant risk being in breach of the Rome Statute and the Implementation Act, making themselves liable to criminal prosecution here and in The Hague. And nothing would stop an aggrieved Ukrainian victim from claiming reparations against them personally should they fail in their obligations. 

My recommendation to the department and ministry is therefore that they first find better legal advisers, and then make absolutely sure that Putin is arrested should he enter SA. No matter how convoluted the minds in government may be, the law is clear and unambiguous. 

• Myburgh, an attorney in Johannesburg and São Paulo, has advised several embassies on diplomatic immunity for more than 20 years.