Putin's fate may be determined by the courts

The power of the courts is overlooked in the continued controversy surrounding South Africa’s membership of the International Court of Justice (“ICC”). But in this the role of the courts appears to have been overlooked.

The matter may very well be removed from the hands of government if civil society approaches the courts for enforcement of South Africa’s international obligations. It appears that the government seems to have forgotten?The Minister of Justice and Constitutional Development v The Southern African Litigation Centre(867/15) [2016] ZASCA 17 (15 March 2016) and surrounding cases which ordered the arrest of Omar Hassan Ahmad Al Bashir (“Al Bashir”) and the Supreme Court of Appeal (“SCA”) held that ”…the conduct in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th?Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful”

The ICC was established by the Rome Statute of the International Criminal Court to exercise jurisdiction over the most serious crimes of concern to the international community as a whole being genocide, crimes against humanity and war crimes.?

It was incorporated it into the of South Africa in terms of s 231(4) of the Constitution by enacting the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act). The Rome Statute is annexed to the Implementation Act.?

The courts have held that “South Africa is bound by its obligations under the Rome Statute. It is obliged to cooperate with the ICC and to arrest and surrender to the Court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance.”?

The SCA concluded that “..when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made.”

It appears as such the courts will have the final say on the possible arrest of??Putin.

June Marks

B Com (cum laude) LLB (cum laude) LLM (cum laude)

June Marks is currently working on an LLD in Public Constitutional and International Law focussing on extradition