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AN ARRESTING MATTER

BRICS foreign ministers meet in Cape Town as questions mount about Putin’s possible visit

BRICS foreign ministers meet in Cape Town as questions mount about Putin’s possible visit
Russian President Vladimir Putin at the Kremlin in Moscow, 23 May 2023. (Photo: EPA-EFE / Alexey Filpov / Sputnik / Kremlin Pool) | South African Minister of International Relations and Cooperation Naledi Pandor. (Photo: Victoria O’Regan) | International Criminal Court. (Photo: Wikimedia)

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. DM

Gallery

Comments - Please in order to comment.

  • Steve Davidson says:

    RasPutin is such a coward, I’d actually ask which of his body doubles he’d send in his place!

  • Gavin Ehlers says:

    The Putin/Russian love affair boggles the mind. In reality, i.e. economically, South Africa is far more engaged with the rest of the world than with Russia (and BRICS) and has far more to lose from this delinquent relationship. Is this relationship motivated purely by blind nostalgia, or is there something more sinister afoot. What was the real purpose for the mysterious visits by various politicians to Russia? We know the “medical treatment” was a blatant lie . Was this to receive “training” on how to bludgeon and manipulate a democracy in order to secure power until Jesus returns, subverting the rights of the citizenry (or otherwise their “lumpenproletariat”); or perhaps to engineer chaos and anarchy in order to bring in the Wagner Group to enforce “peace and stability”. What is it they have promised Putin, that they are so beholden to and sh*t-scared of him, thinking only to save their yellow-bellied skins in favour of 60 million citizens.

    • Tore Rognmo says:

      This is exactly what’s going to happen in connection with the 2024 elections. ANC will end below 50% but that doesn’t mean they are giving up all their privileges. The upfront planning (see above) will now come into force. Very accurately described by Gavin Ehlers.
      A newspaper article in Europe referring an interview with Prigozjin (Wagner Group Boss) in his Office lately, a large World Map was shown on the wall behind him with 37 map markers spread over the map.
      The markers were colored red, white and green.
      Seven red markers were fixed in Africa: Mali, Mosambik, Eritrea, The Central African Republic, Sudan, Burkina Faso and Benin. With some brain power, the red markers where assigned to the presence of Wagner Mercenaries.
      The white markers were fixed in Zimbabwe, DRC, Madagascar and Guinea. In these countries the strategy was to get prorussian politicians into important positions.
      There were altogether 13 green markers on the map.
      In Africa they were fixed in South Africa, Ethiopia, Gabon and Nigeria.
      We know the green markers mean a country with a prorussian government. (Our Defence Minister should be disqualified for that position.)
      The Opposition seems to have enough to struggle with potholes, load shedding, PhalaPhala, etc while ANC concentrating on the big take over.

  • Paul Mathias says:

    If Putin have a toss about his local flunkies he would have already decline the in-person invitation. Of course his attending would serve his purpose of driving a wedge between South Africa and our main trading partners.

  • Brian Doyle says:

    If he comes he should be arrested, and as this is the Western cape and specifically Cape Town could our local metro police not arrest and hold him. In addition if any hotel chain offers him and his party accommodation they should be put on a no stay list and totally boycotted

  • Paddy Ross says:

    BRICS members and those showing an interest in becoming members are a pretty unsavoury lot. I doubt that any of them understand why democracy is essential to the citizens of their countries. Subject to correction, I am not aware of any of them being governed “of the people, by the people, for the people”.

    • Gerri Harrison says:

      Oh, come now, Iran, Cuba, Saudi Arabia, – shining beacons of freedom and prosperity every one; and the DRC, Africa’s answer to Sweden, surely?

  • Lisbeth Scalabrini says:

    IMO Putin has never even thought of coming to SA.

  • Louise Wilkins says:

    Having Naledi Pandor as Minister of International Relations and Cooperation really shows the world how incompetent we are. She should really be replaced.

  • Trevor Thompson says:

    Do the right thing South Africa. How can you support Russia/Putin at all?
    1. The invasion of a sovereign Ukraine is akin to the UK conducting a special operation to capture its old territories, now sovereign, in Southern/Eastern Africa like the Eastern Cape or Kenya. Or, like South Africa invading and capturing Namibia after first destroying its infrastructure and killing its people. It would be wrong for exactly the same reasons why Russia is wrong.
    2. Blindly supporting Russia is morally indefensible. It only leads to our become more isolated from the West, with whom we trade the most. The people who will lose the most here are the poorest of the poor.
    3. Support for communism should not come purely from the stalwarts in the ANC. This should be tested across the entire population. After the Lady R episode an opinion poll (forget which one) found that 72% of South Africans did not support the war in Ukraine by Russia.
    4. Russia is not in BRICS and involved in taking key roles in many African countries only for valiant reasons. They would subject nations to controls to satisfy their own ends – which do not have mutual benefits at country level to all parties. The buy, or coerce, their way into these relationships. Again the poor lose out. We would love to know how much money top officials such as our politicians have earned via the back door. Lifestyle audits?
    This is simple and logical to anyone – which is even more damning of the approach taken by government.

  • Alan Wassung says:

    If we understand the growing groundswell of active discontent in Russia itself, I would suggest that Putin himself may be inclined to stay at home for fear of a palace coup taking place whilst he engages with his fellow brics comrades! I am sure a palace coup will happen regardless, however Putins’ absence would present a wonderful opportunity for just so a party to gain a foothold sooner?

  • Clive McGill says:

    If anyone has read Jacques Pauw’s latest book “Our Poisoned Land” together with Bheki Cele at the helm, you will know that no arrests will ever be made here. We can argue about whether he should or shouldn’t, but it will never happen. We will end up on the wrong side of history (again) and suffer the economic consequences.

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