South Africa is said to not comply with the ICC's arrest warrant if President Putin visits the country, but that would seriously damage its international reputation.
South Africa has just hosted a meeting of foreign ministers of the BRICS countries, an important step in preparation for the bloc's summit to take place in August in Johannesburg. BRICS includes 8 countries Russia, China, India, Brazil and South Africa, accounting for more than 5% of the global population and nearly a quarter of world GDP.
However, one issue plaguing South African officials is how to handle the arrest warrant for Russian President Vladimir Putin issued by the International Criminal Court (ICC) in the event he travels to Johannesburg for the BRICS summit.
The arrest warrant was issued in mid-March when the ICC, based in The Hague, Netherlands, accused Putin and the Russian President's Commissioner for Children's Rights Maria Lvova-Belova of "illegally moving" Ukrainian children to Russia during the outbreak of conflict between the two countries.
Russian President Vladimir Putin at a press conference in the Kremlin, Moscow, December 12. Image: AFP
Accordingly, the ICC asked 123 member countries, including South Africa, to arrest President Putin and move him to the Netherlands for trial if he set foot in their territory. In practice, however, not all countries comply with the court's ruling.
Moscow calls the ICC arrest warrant meaningless. The US and Russia used to join the ICC but withdrew and did not recognize it. Some countries such as China and India do not participate and do not recognize the jurisdiction of the ICC. In 2016, then South Africa's president, Jacob Zuma, proposed withdrawing the country from the ICC, but later abandoned the idea.
Putin accepted an invitation to attend the BRICS conference before the arrest warrant was announced by the ICC. Russia's TASS news agency said on May 26 that Putin "did not withdraw his decision to participate in the conference", adding that "the Russian leader was invited".
Kremlin spokesman Dmitri Peskov earlier this week warned BRICS partners "should not be led by illegal decisions" such as the ICC arrest warrant.
However, if President Putin attends the BRICS summit directly, the arrest warrant from the ICC will put South Africa in a diplomatic dilemma and create controversy within the country.
South African left-wing parties urged the government to withdraw from the ICC and welcome Putin to the BRICS conference. Meanwhile, the leading opposition Democratic Alliance (DA) party called on the government to enforce an arrest warrant for the Russian president should he visit South Africa.
South Africa has so far refused to condemn Russia's campaign in Ukraine, saying it wants to remain neutral and prioritize dialogue to end the fighting. Earlier last month, President Cyril Ramaphosa said South Africa was facing "tremendous pressure" to choose a side in the conflict.
On May 30, the DA announced it had applied to the court to ensure the government would arrest the Russian leader and hand him over to the ICC "if President Putin ever sets foot in the country".
"This action is to ensure that South Africa will comply with its obligations," said Glynnis Breytenbach, the senior DA official in charge of overseeing the Justice Department's operations.
Meanwhile, Justice Minister Ronald Lamola last month said South Africa would "explore various options" on how to apply the ICC arrest warrant, including extending customary diplomatic immunity to visiting heads of state.
The DA's legal action comes as the South African government grants diplomatic immunity to BRICS foreign ministers meeting this week in Cape Town and also to leaders scheduled to attend the BRICS summit in August. Many have argued that this is a step to secure President Putin's visit, but the South African government has denied it.
"These immunities do not override any order issued by an international court to conference attendees," the South African foreign ministry said in a statement, adding that granting diplomatic immunity is only "standard" procedure when hosting international conferences.
Dr Chido Nyere, an international relations expert from the Institute for Trans-African Thought and Dialogue at the University of Johannesburg, said it was highly unlikely that President Putin would be arrested in South Africa while he was there for the BRICS summit.
“The court can make a decision on the legal aspect, but this is not a legal case. This is in fact a political affair and the law has its limitations. This is a very complicated case and the courts have their limits too,” he said.
"The United States, it seems, is putting pressure to arrest President Putin, not a party to the ICC," he added. "Every attempt to capture the Russian leadership must be made on a cooperative basis."
Politically, South Africa has no incentive to enforce the ICC's arrest warrant against Putin, said Professor Dire Tladi from the University of Pretoria Law School. It is eager to strengthen its role in the BRICS, and its relationship with Russia has also grown in recent years.
In that context, the execution of the arrest warrant for President Putin will put South Africa-Russia relations on the brink and their role in the BRICS bloc is likely to be erased.
But if it fails to comply with the arrest warrant, South Africa could face major legal and reputational trouble in the international arena.
"If there is an order from an international court stating that President Putin must be arrested, then by law, when the Russian leader arrives, South Africa is obligated to arrest and hand him over," Tladi explained. "If not, then the question will be raised as to whether South Africa willfully disregard the ICC's decision."
Reuben Brigety, the US ambassador to South Africa, said the US "cannot understand" why the South African government has not publicly committed to complying with its obligation to comply with the ICC decision regarding the arrest warrant for Mr.
In 2015, South Africa allowed then-Sudan president Omar al-Bashir to visit the country, despite an ICC arrest warrant for him on genocide charges. This move has caused South Africa to receive much criticism from Western countries.
This time, the South African authorities are said to be looking for loopholes in the ICC's arrest warrant to "evade the law", able to welcome the Russian President to the BRICS conference without causing any disturbance or criticism.
South Africa has set up a commission headed by Vice President Paul Mashatile to study possible options for President Putin's visit and it believes a legal path may have been found.
Last month, South African officials said the government could focus on the fact that the arrest warrant issued by the ICC against President Putin did not stem from a recommendation by the United Nations Security Council, unlike the case of Sudan's president al-Bashir. This fact would allow them to argue that Putin has immunity under “customary international law” because Russia is not a member of the ICC.
But according to Hannah Woolaver, an associate professor of international law at the University of Cape Town, ICC member states do not have the right to ignore arrest warrants by providing their own interpretation of the immunities in the Rome Statute. "That is ultimately up to the ICC to decide," she said.
The Rome Statute on the ICC, adopted in July 7 and entered into force in July 1998, provides for all member states the obligation to exercise criminal jurisdiction over international crimes.
South Africa will have to try to convince the ICC of the validity of its argument for immunity under “customary international law”. However, the ICC judges are unlikely to be convinced because they have ruled against this argument in the case of former president al-Bashir.
“If member states refuse to execute an arrest warrant based on such an interpretation, that would render any decision from the ICC null and void,” she said.
Mark Kersten, an associate professor of criminal justice at Canada's Fraser Valley University, said that if South Africa did not enforce the arrest warrant for Putin, it would harm both the country itself and the ICC. That would "discredit the ICC, but perhaps more severely than the reputation of the South African courts", he said.
Russian President Vladimir Putin speaks during a press conference after the BRICS summit in Johannesburg, South Africa, in July 7. Image: Reuters
Any attempt to resist the arrest warrant could also damage South Africa's relations with the West, and weaken its statement of neutrality in the face of the Russia-Ukraine conflict, observers say.
"This will be proof that South Africa is backing Russia at a time when South African President Cyril Ramaphosa is trying to establish himself as a neutral mediator on a mission to create peace for Russia and Ukraine," said Geoffrey York, a veteran commentator from the newspaper. Global and Mail, Canada, reviews.
Observers say that another solution for South Africa is for Putin to attend the BRICS conference via Zoom, but this is unlikely to be approved by the Russian President. British media reported that South Africa had considered an option for China, which is not a member of the ICC, to host this BRICS summit, but Russian Foreign Minister Sergey Lavrov denied the information.
According to observers, this aggravates South Africa's dilemma. It also raises the big question of whether the BRICS, a large group of countries with vastly different economies, political and social regimes, can really reach consensus in the face of such a dilemma.
Vu Hoang (Follow Al Jazeera, Global and Mail, IOL)
