LETTER: Law must prevail at Brics summit

Fealty to the rule of law is needed in solving the immediate problems facing the SA government in its dilemma over the International Criminal Court (ICC) arrest warrant for Russian president Vladimir Putin. This at a time when he is due to visit SA as our invitee to a Brics get-together in August in Durban. Obfuscation, whether over the cargo of Lady R or more generally, is not helpful.

On a practical level, the dilemma is easily resolved by allowing Putin, who is wanted by the ICC for crimes against humanity involving the kidnapping of Ukrainian children, to attend virtually. Alternatively, the conference could be moved to a venue where the writ of the ICC does not run. One thing is certain: if the visit in person proceeds the SA government is under international obligation to arrest Putin. The constitution regards the rule of law as supreme; constitutional delinquency à la Jacob Zuma is not an option.

A withdrawal from the ICC at this stage will not help SA either. Its rules require a year’s notice, and while the notice is running the withdrawing party is obliged to honour its obligations under the Rome Statute. 

SA has attended this rodeo before when Omar al-Bashir, then president of Sudan, attended a conference in Johannesburg while an ICC arrest warrant was pending. Spiriting him out of the country in defiance of the warrant was illegal and did nothing to enhance the standing of SA as a freedom-loving country that has taken up its “rightful place as a sovereign state in the family of nations”, to quote the lofty aspiration at the end of the preamble to our constitution.

The idea of changing the law to award immunity to Putin as a head of state is also problematic. Our Bill of Rights insists that we are all equal before the law. Our own president does not enjoy immunity; he too is regarded as “equal before the law” and has “equal protection and benefit of the law” under section nine of the constitution. Any legislation introduced to make a special case of Putin, or any other head of state for whom an ICC arrest warrant has been issued, is likely to be impugned as unconstitutional.

While the rights in the Bill of Rights can be limited, it is difficult to justify a special arrangement for heads of state when the limitation is not “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”, as is required by section 36 of the Bill of Rights. A special dispensation for Putin would be neither reasonable nor justifiable in our human rights-focused dispensation. The state in SA is obliged to respect, protect, promote and fulfil human rights. Not arresting Putin, should he arrive, would flagrantly breach those obligations.

Paul Hoffman, SC

Accountability Now

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