Presidents Cyril Ramaphosa and Vladimir Putin at the first Russia-Africa Summit in Sochi, Russia, 2019. Photos: GCIS
The International Criminal Court (ICC) has issued an international arrest warrant against Russian President Vladimir Putin for alleged war crimes in connection with the illegal deportation of children from Ukraine to Russia. Such acts are war crimes under two articles of the Rome Statute which established the Court.
ICC arrest warrants for incumbent heads of state are rare.
Putin faces arrest if he enters any of the statute’s 123 signatory states. Of these, 33 are African countries. The issue could come to a head in August when South Africa hosts the 15th Brazil-Russia-India-China-South Africa (BRICS) bloc summit in Durban.
Putin has been invited as head of state. But as a member of the court, South Africa is required under Article 86 of the ICC Statute and domestic law to fully cooperate in the arrest of the Russian President.
This is not the first time the country has faced such a dilemma.
In 2015, Sudanese President Omar Al Bashir visited the country to attend a summit of African Union heads of state. In relation to South Africa’s obligations to the ICC, it was obliged to arrest Al Bashir, who had been charged with violations of international humanitarian law and human rights in the Darfur region of Sudan. The government of the time, under the presidency of Jacob Zuma, refused to arrest him, invoking immunity from prosecution for incumbent heads of state under international law.
The arrest warrant for Putin has thrown President Cyril Ramaphosa’s government between stone and stone. Fulfilling its domestic and international obligations by executing the arrest warrant would alienate Russia. This would have bilateral ramifications – the country is still considered a friend by the ruling African National Congress due to its support for the Soviet Union in the fight against apartheid – as well as ramifications within the BRICS given Moscow’s close ties with Beijing.
It is not unreasonable to argue that the Ramaphosa government wishes to tread carefully to avoid such tensions.
The story goes on
Read more: Five essential readings on Russia-Africa relations
On the other hand, admitting Putin and thus underlining South Africa’s independent foreign policy would lose credibility internationally.
A likely effect is that South Africa could lose its trade preferences. For example, it could jeopardize its treatment of exports to the US under the African Growth and Opportunity Act (AGOA). AGOA was recently used as a punitive tool against Ethiopia, Gambia and Mali for “unconstitutional changes of government” and “gross violations of internationally recognized human rights”.
Importantly, South Africa’s trade with the US far exceeds that with Russia.
The dilemma
When the Zuma government refused to arrest Al Bashir, it got the government into legal trouble. South Africa’s Supreme Court of Appeal found that it had violated both international and domestic law.
Following the ruling by the Supreme Court of Appeals, Zuma’s government notified the United Nations Secretary-General of its intention to withdraw from the Rome Statute. This unwise move was challenged in the High Court in Pretoria. It ruled that the resignation decision was unconstitutional in the absence of prior parliamentary approval. As a result, the government “withdrew from the deduction”.
In 2017, the ICC found that South Africa had failed in its Rome Statute obligations to the court by failing to arrest and hand over Al Bashir. However, the court decided not to pursue the matter further for pragmatic reasons. It also argued that referring South Africa to the United Nations Security Council for non-compliance “would not be an effective way to encourage future cooperation”.
If Putin attends the upcoming BRICS summit and Ramaphosa’s government fails to arrest him, it would mean South Africa flouting both national legislation and its own constitution. Article 165(5) of the country’s constitution clarifies that the government is bound by court orders and decisions.
Read more: Al-Bashir: What the law says about South Africa’s obligations
How should South Africa react to the dilemma?
At this time, the government’s response is not clear. On the one hand, Ramaphosa’s spokesman said the country is aware of its obligation to arrest Putin and hand him over to the ICC.
On the other hand, Foreign Minister Naledi Pandor confirmed the invitation to Putin to attend the BRICS meeting. She noted that the cabinet must decide how to respond to the ICC’s arrest warrant.
The government wants to carefully balance its ICC obligations, domestic responsibilities, and historically friendly relations with Russia. Unless it is determined to flout its own court decisions and laws, there are options to avoid another round of international convictions, and that would help it avoid potential civil society lawsuits for failing to comply with the country’s own laws and court decisions.
options
First, South Africa should continue to invite Russia to attend the summit. But, through diplomatic channels, demand that the Russian delegation be led by its foreign minister, Sergey Lavrov. Lavrov has essentially become the face of Russia on the international stage since the start of the war in Ukraine.
Second, during the COVID pandemic, it became clear that physical presence at international gatherings of heads of state could be replaced by virtual presence. The UN General Assembly set a good benchmark for this when heads of state issued video statements due to pandemic restrictions. Putin could attend the BRICS summit virtually.
The need for heads of state to sign off on the summit documentation is not an obstacle to virtual participation. Putin can sign the documents electronically or after the summit if a non-electronic signature is required.
The ball is now in the hands of the South African government. The hope is that it makes the right decision, one that is in the best interests of the country and its people – not Russia or the US, especially since none of the major powers signed the ICC statute. Neither should dictate what South Africa has to decide.
Above all, the government must not trample on its own laws and court decisions. Compliance with the Constitution must take precedence. A decision that is in the interests of South Africa and its people would also serve as a guide for the other 32 African signatories to the International Criminal Court should they ever face a similar dilemma in the future.
This article was co-authored with Sasha-Lee Stephanie Afrika (LLD), Attorney of the High Court of South Africa and former Lecturer at Stellenbosch University and the University of Johannesburg.
This article is republished by The Conversation, a nonprofit news site dedicated to exchanging ideas from academic experts. If you found it interesting, you can subscribe to our weekly newsletter.
It was written by: Sascha-Dominik (Dov) Bachmann, University of Canberra.
Continue reading:
Sascha-Dominik (Dov) Bachmann does not work for, does not consult for, own any shares in or receive funding from any companies or organizations that would benefit from this article, and has disclosed no relevant affiliations beyond her academic appointment.