Amnesty International South Africa has been admitted as an amicus curiae, friend of the court, in the application for a declaratory order that if Russian President Vladimir Putin attends the BRICS Summit in South Africa due to take place in August, the South African authorities are obliged to arrest him.
The International Criminal Court (ICC) in March issued warrants of arrest for President Putin and the Commissioner for Children’s Rights in the president’s office, Maria Alekseyevna Lvova-Belova for alleged war crimes involving the unlawful deportation of children from Ukraine to Russia, and the unlawful transfer of children from occupied areas of Ukraine to the Russian Federation.
As a signatory to the Rome Statute that established the ICC, South Africa has a duty to arrest and surrender President Putin to the court if he sets foot in the country. In 2002, South Africa adopted the Implementation Act which provided a framework for the implementation of the Rome Statute in the country.
“South Africa’s international legal obligations are clear as a member state of the ICC. Authorities must arrest Putin and hand him over to the ICC. Pretoria cannot aid a fugitive of the ICC to attend the BRICS summit and leave while he is accused of war crimes committed in Ukraine. That would be a violation of South Africa’s obligations under international law and a betrayal of victims of crimes under international law in Ukraine,” Amnesty International South Africa’s Executive Director Shenilla Mohamed said.
Amnesty International has closely monitored the situation in Russia and Ukraine since the invasion began on 24 February 2022, and has documented a variety of war crimes and other violations of international humanitarian law.
As an amicus curiae, we intend to make submissions on South Africa’s obligations under international and domestic law. We will also draw on our organisation’s own research and reports into the situation in Ukraine as they relate to this particular issue.
Shenilla Mohamed said Amnesty International South Africa would be joining the application as an independent and impartial friend of the court aiming to assist the court on matters of international justice, human rights violations and accountability of state actors.
“As Amnesty International we are clear that if President Putin arrives in South Africa, the state is legally obliged to arrest him and surrender him to the ICC,” she said.
In 2015, South Africa failed to fulfil its obligation by not arresting then Sudanese president Omar Al-Bashir, who is accused of war crimes and crimes against humanity committed in the Darfur region, when he attended the African Union Heads of State Summit in Johannesburg.
“This must never be repeated. If South Africa allows this to happen again, it will be showing disregard for both domestic and international law. It will also indicate that the country, which is currently occupying a seat at the UN Human Rights Council, is failing to protect human rights and to combat impunity for crimes under international law,” Shenilla Mohamed said.
International Justice
South Africa was instrumental in building consensus for the creation of the ICC, more than 20 years ago, to bring an end to impunity for crimes such as genocide, crimes against humanity and war crimes. South Africa signed the Rome Statute on 17 July 1998 and ratified it on 27 November 2000. It has been at the forefront of international justice and should continue to lead, even when others refuse to.
“The ICC is one of the key avenues to justice for millions of victims of war crimes, crimes against humanity and genocide. The Rome Statute criminalises genocide, war crimes, and crimes against humanity, including apartheid as a crime against humanity. At a time when crimes under international law continue to be committed, often with impunity, the ICC often presents the last chance for victims of Rome Statute crimes to gain truth, justice and reparation,” Shenilla Mohamed said.
Under the African Charter on Human and People’s Rights, respect for the sanctity of human life, condemnation and rejection of impunity is one of the key objectives and key organising principles of the Constitutive Act of the African Union, to which South Africa is also a party.
“South Africa remains a crucially important ICC member state, and it should be at the vanguard of attempts to prevent crimes under international law and prosecute perpetrators. International mechanisms such as the ICC are essential for justice, truth, full reparation and guarantees of non-recurrence for victims and survivors of serious crimes everywhere,” said Shenilla Mohamed.
Accountability
However, we also believe that international justice institutions need to be held accountable.
Amnesty International has highlighted several recent decisions and practices which appear to beg the question of whether the ICC’s principles are applied equally to victims of crimes under international law in any situation or region. For example, in 2020 the Office of the Prosecutor (OTP) that sits in the ICC decided not to investigate war crimes by UK forces in Iraq, despite its own finding that these crimes had been committed. This was followed by a decision in 2021 to deprioritise an investigation into war crimes in Afghanistan by US and Afghan national forces, citing budget constraints.
“Amnesty International has called on the ICC to ensure that all funding is allocated in a non-discriminatory way and in accordance with the interests of justice, and to ensure that all victims of serious crimes have equal access to the rights to remedy and reparations,” Mohamed said.
Background
The International Criminal Court issued an arrest warrant for President Putin on 17 March 2023.
In November 2022, Amnesty International published a report which documented forcible transfer and deportation of Ukrainian civilians, including children, by Russian forces and their proxies into Russian territory or deeper into Russian-occupied Ukraine. The organisation found this amounted to war crimes and likely crimes against humanity.
On 30 May 2023, the Democratic Alliance, launched a court application in the High Court in Pretoria requesting a declaratory order to the effect that if President 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 President Putin to the ICC.
Amnesty International has been working to document war crimes and other violations of international humanitarian law since the beginning of Russia’s full-scale invasion of Ukraine. All of Amnesty International’s outputs published to date can be found here.