Theoretically, South Africa would have to arrest Vladimir Putin if he were to enter the country. The government wants to avoid this at all costs and hopes for a legal loophole.
Johannesburg - Russian President Vladimir Putin must always expect to be arrested when traveling abroad. The reason for this is an arrest warrant issued by the International Criminal Court in The Hague (ICC) against Putin in March 2023 for the abduction of Ukrainian children to Russia. This puts South Africa in a dilemma, as it will host a summit of the BRICS group in August. In addition to China, India, Brazil and South Africa, Russia is also part of this network of emerging states. The heads of state and government are expected to be their representatives, including Putin himself.
South Africa is one of the 123 signatories to the so-called Rome Statute, on the basis of which the ICC was founded. Theoretically, South Africa is therefore obliged to arrest Putin immediately if he sets foot on South African soil. The government of South Africa, which is striving for a good relationship with Russia, wants to avoid this scenario at all costs. It grants blanket immunity to all participants in the BRICS summit, including world leaders, to avoid arresting Putin, the Guardian reports. However, South African officials stress that it is unclear whether this immunity overrides the ICC's arrest warrant.
15th BRICS Summit
The meeting of the so-called BRICS countries Brazil, Russia, India, China and South Africa will take place from 22 to 24 August in the South African port city of Durban. The BRICS alliance was founded in 2006 as an economic and political alternative to the West, which was perceived as too dominant. With the war in Ukraine and the looming conflict between China and Russia on the one hand and the West on the other, this union of states is gaining in importance and is increasingly competing with the G7 format.
Lack of clarity about the scope of action of immunity
South Africa's Department of Foreign Affairs said on Tuesday (30 May) that it was a "standard immunity that we grant to all international conferences and summits in South Africa, regardless of the rank of the participants and the level of their involvement". The immunity applies to the conference, "not to specific people", but protects the participants of the conference from the jurisdiction of the host country South Africa, the ministry said, according to the Guardian.
However, this "standard immunity" does not necessarily protect against the jurisdiction of the ICC. This is claimed, among other things, by experts from the analysis institute Eurasia Group, as reported by the Frankfurter Allgemeine (FAZ). The immunity would not lift the ICC's international arrest warrant, so South Africa could be legally obliged to arrest Putin if a court ordered it.
Russian President Vladimir Putin welcomes his South African counterpart at the first Africa-Russia summit in 2019. ©
According to a report in the South African Sunday Times, the country's authorities had already warned President Putin a few weeks ago after a specially established government commission had unsuccessfully sought ways to prevent his arrest by the ICC. "We have no way of not arresting Putin," a government official told the Sunday Times, according to a report in the Berliner Zeitung in early May. "If he comes to South Africa, we will be forced to arrest him."
Government of South Africa resolute: "We will not make an enemy of Russia"
This legal obligation, the fulfilment of which was confirmed by South African government spokesman Vincent Magwenya in March, is contrary to the political will of the government in Johannesburg. She has already indicated that she does not want to see Putin arrested in his own country under any circumstances. "We will not make an enemy of Russia at the behest of others," South African Foreign Minister Naledi Pandor said on the sidelines of a bilateral Russian-South African economic conference. ARD's South Africa correspondent, Richard Klug, called it "completely inconceivable that South Africa would arrest Putin" in early April.
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Now Johannesburg is apparently hoping that the Rome Statute, on which the ICC is legally based, will provide a loophole to avoid arrest. One article states that the execution of an arrest warrant is inadmissible if it would "oblige the requested State to act contrary to its obligations under international law with respect to the governmental or diplomatic immunity of a person (...) unless the Court may first obtain the cooperation of that third State in the waiver of immunity.'
According to the Guardian, some people deduce from this passage that the blanket immunity of the host country protects every participant in the BRICS summit, including Putin, from arrest by the ICC. It is unclear how this can be reconciled with the government's statement that it will be "forced" to execute the arrest warrant.
Russia calls arrest warrant "illegal decision"
Russia could save South Africa from this dilemma by refraining from attending the BRICS summit in person in August. But it doesn't look like that. The Kremlin said on Tuesday (30 May) that Russia would participate at an "appropriate level", as reported by the Guardian. Kremlin spokesman Dmitry Peskov commented on the ICC's arrest warrant at a press conference. It is relied upon that partner countries will not be guided by "such an illegal decision".
A similar dispute erupted in 2015, when then-Sudanese dictator Omar al-Bashir traveled to an African Union (AU) summit in South Africa. An international arrest warrant was also issued against him, but South Africa's government invoked diplomatic immunity and received him anyway. However, al-Bashir quickly left the country as it became increasingly likely that South Africa's Supreme Court would order his arrest. Activists had gone to court. It is unclear whether the much more powerful Russian head of state will be allowed to come to that.
