Can Pretoria legally grant Russian President Vladimir Putin immunity from ICC arrest in time for the BRICS summit in August?

The foreign ministers of BRICS meet in Cape Town on Thursday to prepare for their August summit in Johannesburg amid growing speculation and uncertainty about whether Russian President Vladimir Putin will attend the summit.

When the five foreign ministers from South Africa, Russia, Brazil, China and India meet in Cape Town, they will be joined, virtually, by their counterparts from the “Friends of BRICS” — a sign of growing interest from Global South countries in joining this bloc. This new interest has partly been inspired by the growing polarisation between the West and Russia/China over Russia’s invasion of Ukraine on 24 February last year.

The foreign ministers of Iran, Cuba, Saudi Arabia, United Arab Emirates, Kazakhstan, Democratic Republic of the Congo, Comoros, Gabon, Argentina, Bangladesh and Egypt are all due to address the meeting by video.

Who to admit as new members will be one of the main agenda items at the foreign ministers’ meeting and the summit. But the foreign ministers are also likely to discuss what to do about Putin.

In March this year, the International Criminal Court (ICC) issued a warrant for the arrest of Putin for his alleged complicity in the war crime of abducting Ukrainian children and deporting them to Russia. As an ICC member, South Africa would be obliged to arrest Putin if he sets foot in the country and surrender him to the court in The Hague if the ICC asks South Africa to do so.

Legal sources say they believe the ICC has already issued this request to Pretoria.

Pretoria recently announced that it was still seeking legal opinions on how it could allow Putin to visit and not violate its obligations to the ICC or to its own ICC Implementation Act which domesticates the Rome Statute of the ICC into South African law.
Diplomatic immunity

This week, International Relations and Cooperation Minister Naledi Pandor caused a stir by gazetting an order granting diplomatic immunities and privileges to all foreign officials attending this week’s BRICS foreign ministers meeting as well as the summit in August. This suggested that the government had already decided to allow Putin into the country and was paving the way by granting him immunity from ICC arrest.

However, her officials pointed out that the conferment of immunities was a routine matter which the department did for all such international meetings. And a day later, her department pointed out in a statement: “These immunities do not override any warrant that may have been issued by any international tribunal against any attendee of the conference” — an obvious reference to the ICC and Putin.

But then the pendulum of speculation swung the other way when the BBC reported that Obed Bapela, a deputy minister in the Presidency, had told it that Pretoria was seeking a waiver from the ICC so that it would not have to arrest Putin.

According to the BBC report, Bapela also told it that the government would submit legislation to Parliament in June to amend its ICC Implementation Act to give it the power to decide for itself whether to arrest a leader wanted by the ICC. Via this amendment, South Africa “will give itself exemptions of who to arrest and who not to arrest”, Bapela was quoted as telling the BBC.

As it now stands, the ICC Implementation Act is explicit that no one, not even a sitting head of state, is immune from prosecution by the ICC.

The waiver from the ICC which Bapela referred to would probably be under Article 98 of the Rome Statute which governs the ICC.

While Article 27 says no one is immune from prosecution by the ICC, Article 98 seems to contradict this by suggesting that the ICC could not ask South Africa to arrest Putin unless Russia agreed to waive Putin’s immunity from prosecution. However, a senior government source told Daily Maverick that neither of the options which Bapela had mentioned could be implemented in time for the summit.

There was no draft amendment of the ICC Implementation Act ready and even when it was, it would take at least a year for Parliament to pass it and for President Cyril Ramaphosa to sign it into law. The source said there was also not enough time to secure a waiver from the ICC in The Hague.

As a result, the government was looking into alternative arrangements for the summit, including having Putin participate virtually or even holding the whole summit outside South Africa in a country which is not a member of the ICC. However, it appeared that Russia and China had not yet been convinced about the merits of these alternatives.

Yet the official was adamant that there was no way South Africa could host Putin in August and still remain compliant with its ICC obligations.

Do Bapela’s view and this official’s view represent the opposite poles in an intense debate inside the government on how to handle the Putin dilemma? A debate between the ideologues and the pragmatists? It’s not yet clear.

But most independent legal experts agree that there just isn’t time to do what has to be done to allow Putin to visit South Africa in August.