South Africa could rely on 'technicality' not to arrest Putin if he attends BRICS summit in August

South Africa could rely on 'technicality' not to arrest Putin if he attends BRICS summit in August
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By Thulani Mpofu May 18, 2023

South Africa could host Russian President Vladimir Putin in August 2023 despite an International Criminal Court (ICC) arrest warrant against him as the order lacks the backing of the UN Security Council.

This, according to Zane Dangor, director-general of the Department of International Relations and Cooperation, is one of the possibilities South Africa is considering ahead of hosting a summit of the BRICS group (Brazil, Russia, India, China, and South Africa) in August.  

Dangor, News24 reported on Thursday (May 18), said in terms of international law, an arrest warrant against an individual whose country is not a party to the ICC needs UN Security Council endorsement for it to be enforceable.

“It [a South African committee appointed to come up with a position on Putin’s participation at the summit] has reaffirmed South Africa’s membership of the ICC, but it also needs to deal with significant matters,” Dangor said.

“One of them is the fact that this is the first third party state where a warrant of arrest is issued, where that warrant of arrest does not come through the UN Security Council. I think it is important to clarify that. 

“We know that not all countries are party to the ICC. For countries that are not party to the ICC, the only other way they can become subject to the jurisdiction of the ICC is through the UN Security Council. An example of this is Omar al-Bashir from Sudan, who was referred to the UN Security Council. Sudan was not a state party to the ICC, but because they were referred by the UN Security Council that immunity was waived.”

The ICC issued the arrest order against Putin in March 2023 accusing him of forcibly deporting Ukrainian children to Russia. South Africa is under pressure to arrest him if he physically attends the BRICS summit. In April, South African President Cyril Ramaphosa appointed his deputy, Paul Mashatile, to chair an inter-ministerial committee to consider how to handle the possible visit by Putin.

Russia is one of the five permanent members of the UNSC which have veto powers.  Al-Bashir visited South Africa in 2015 and South Africa refused to arrest him.

Dangor added that the Putin case is the first time that a third-party state has been issued a warrant of arrest where the investigation has not been triggered by the UNSC.

“That means Article 98 of the Rome Statute, which deals with countries’ obligations under the international customary law, kicks in and this means that in terms of that third party state, not coming through the Security Council to the ICC, must get a waiver of that person’s immunity from that state,” he noted.

“In this particular case, the waiver of immunities for President Putin would need to come from Russia itself. This is subject to various legal interpretations and this is why this committee is looking at all these facets. We have a legal opinion, but another independent legal opinion has been sought so that we make sure of the action that will be taken.”