President Cyril Ramaphosa says arresting Russian President Vladimir Putin would be a declaration of war with Russia and that South Africa does not have the capacity nor appetite to wage war with Russia.
He said a war with Russia would betray his constitutional duty to protect the sovereignty, peace and security of the republic.
This is revealed in his answering affidavit to a DA application in the Johannesburg high court to compel the state to detain and surrender Putin to the International Criminal Court (ICC) when he arrives in South Africa to attend the Brics summit later this year.
Ramaphosa’s affidavit, which was previously “confidential”, is now public after the court ruled on Tuesday that it, along with the DA’s replying affidavit and other documents, should be disclosed without qualification.
“I must highlight, for the sake of transparency, that South Africa has obvious problems with executing a request to arrest and surrender President Putin. Russia has made it clear that arresting its sitting president would be a declaration of war,” said Ramaphosa.
“It would be inconsistent with our constitution to risk engaging in war with Russia. I have constitutional obligations to protect the national sovereignty, peace and security of the republic, and to respect, protect, promote and fulfil the rights of the people of the republic to life, safety and security, among other rights in the Bill of Rights.”
He described the DA’s application as unnecessary, superfluous and irresponsible, especially as Russia had “made it clear” that the arrest of its president would be a declaration of war.
The ICC itself had expressed concern over Russia's nuclear threat, after the arrest warrant, he said.
Ramaphosa confirmed in the affidavit that the government has initiated article 97 proceedings with the ICC, where it has indicated problems that impede or prevent the execution of the warrant of arrest issued against Putin.
Article 97 of the Rome Statute allows states to communicate to the ICC that there are problems that impede honouring the execution of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued. While articles 86 and 89 of the Rome Statute mandate states to comply with a request for co-operation, the provisions of these articles are subject to the procedures, mechanisms and remedies available to states under part 9 of the Rome Statute. One of those procedures, mechanisms and remedies is article 97, said Ramaphosa.
My government and I have constitutional obligations to protect the national sovereignty, peace and security of the republic and its people
— President Cyril Ramaphosa
He said it is evident from the language of article 97 that the list of potential “problems” expressly set out in the article was not exhaustive.
The problems that may be raised by a state include, but are not limited to, those expressly listed in the article.
“I respectfully submit that the problems envisaged in article 97 may include situations where implementing the request for the arrest and surrender of a person threatens the national security, peace and order of a state.
“It would be a reckless, unconstitutional and unlawful exercise of the powers conferred upon the government to declare war with Russia by arresting President Putin.
“My government and I have constitutional obligations to protect the national sovereignty, peace and security of the republic and its people.”
Ramaphosa said South Africa was also entitled to raise with the ICC concerns based on the requirements set out in article 98 of the Rome Statute, which reads as follows: “The court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the co-operation of that third state for the waiver of the immunity.
“I am advised that the relevance of article 98 is recognised by relevant experts in the field.”
He said in seeking a peaceful solution grounded in negotiation, reconciliation, peace and other constitutional principles that are the bedrock of SA's constitutional order, the government has not done anything unlawful.
He also cited the initiative by several African states to engage Ukraine and Russia in talks, with a view to ending the war altogether, saying arresting Putin would introduce a new complication that would foreclose any peaceful solution.
Both parties to the conflict have agreed to further engagements with African leaders with the view to continuing discussions on a peace road map that could contribute to ending the conflict.
The DA criticises the government's peace stance at length in the founding affidavit and suggests it is somehow in conflict with the government's legal obligations.
“It is not. Our own constitutional order is founded on the back of centuries of international crimes and atrocities committed by the white minority government during the years of apartheid and colonialism. Yet it is an order that commits us to negotiation, reconciliation and peace.
“If anything, South Africa is enjoined, given its unique experience with crimes against humanity and atrocities, to contribute to the international community by showing it that forgiveness, reconciliation and peace (rather than retaliation and retribution) are a constructive path to overcoming international atrocities and restoring international peace.”
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