Durban - Experts in international relations and law believe it is unlikely that Russian President Vladimir Putin will face arrest when he travels to Durban later this year to attend the 15th BRICS summit.
The International Criminal Court (ICC), of which South Africa is a full member, issued a warrant of arrest against Putin and urged the 123 countries who are signatories to the Rome Statute to arrest him. This is for alleged war crimes related to the abduction of children from Ukraine.
While South Africa has said it was waiting for a legal opinion on the ICC arrest warrant, International Relations and Co-operation Minister Naledi Pandor, speaking at a joint economic co-operation meeting with Russia last month, said no one could tell South Africa to dump Russia.
Unisa Professor Emeritus of International Law André Thomashausen said the correct interpretation of the Rome Statute must consider its failure to win the consent and support of the most powerful nations, including the US, China, Russia, India and Israel.
“In view of its lack of universal adherence, the Rome Statute did not change the rules of customary international law, established since the days of the Roman Empire, to grant absolute sovereign immunity to any sitting head of state. The foundation of this rule is simply that all states must enjoy equal sovereignty. No state can claim to be entitled to rule over another state.
“S 4(1)(a) of the South African Diplomatic Immunities and Privileges Act 37 of 2001 (DIPAipa) explicitly recognises the law in point. It states: ‘(1) A head of state is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as (a) heads of state enjoy in accordance with the rules of customary international law’ … ”
Thomashausen said the powers of ICC to arrest and prosecute cannot be applied to heads of state of those major nations that have not adhered to the Rome Statute.
“More importantly, signatories of the Rome Statute, like South Africa, cannot apply ICC warrants against heads of state of non-signatories because the non-signatory states never waived their absolute rights of sovereign immunity and equal sovereignty.”
He said the SA Supreme Court of Appeal in its “Bashir judgment” of 2016 “took another view and without compelling arguments, the court reasoned that because the Security Council of the UN had requested the ICC to prosecute Sudan’s President Bashir, by implication the Security Council would have ‘cancelled Bashir’s immunity’.
“However capricious, this reasoning could not be applied to the most recent target of the ICC, Putin. Unlike the Bashir case, Putin’s arrest was not requested by the UN Security Council but determined by the ICC on its own initiative,” he said.
However, “the ICC on its own does not have the authority to lift the sovereign immunity of a sitting head of state of a non-member state of the Rome Statute,” Thomashausen said.
He said this would not prevent litigants from enlisting the help of judges to enforce the ICC warrant against Putin, despite assurances from the South African government.
He said one option was to hold the BRICS summit in another BRICS member state. Alternatively, South Africa could withdraw from the Rome Statute as resolved by the ANC national conference in 2017.
Dr Noluthando Phungula, from the Institute for Pan African Thought and Conversation at the University of Johannesburg (UJ), said the decision to issue an arrest warrant for Putin had cast a spotlight on the legitimacy of the ICC.
“As at 2018, 48% of the ICC’s investigations have been alleged serious crimes by Africans. The numbers suggest that the court’s focus is rather disproportional, with a focus on the African continent.”
She said the prosecution of international crimes has “obviously been directed at easy targets in non-Western regions, while the atrocities committed by the main imperialist powers remain unattended”.
“For South Africa, it is important to consider whether it is being used as a puppet,” said Phungula.
Dr David Monyae, director for the Centre for Africa-China Studies at UJ, said South Africa did not have the capacity to arrest Putin.
Monyae said South Africa could explore options, one of which would be to convince Russia to send Foreign Minister Sergey Lavrov to the BRICS summit instead of Putin, as was done at the G20 summit in India last month.
“Another option is to hold the BRICS summit virtually.”