The South African government says it is considering legal tactics to help Russian President Vladimir Putin attend a summit in Johannesburg in defiance of an International Criminal Court arrest warrant.
The legal manoeuvring against the Putin arrest warrant could damage the influence and credibility of the international court in The Hague, encouraging other member states to find ways to avoid complying with its orders, international law experts say.
The ICC issued an arrest warrant for Mr. Putin two months ago, accusing him of responsibility for the war crime of abducting Ukrainian children and deporting them to Russia.
Mr. Putin’s planned visit to the August summit of the BRICS countries – Brazil, Russia, India, China and South Africa – has thrown the host country into a quandary. Most experts say the South African government is obliged to enforce ICC arrest warrants on its territory, since it signed the court’s treaty, the Rome Statute, and incorporated it into domestic law. Court rulings in South Africa and at the ICC’s appeals chamber have reached the same conclusion.
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Legal rights groups are planning court action to force South Africa to execute the arrest warrant. But the government is desperate to avoid taking any steps against the Russian President, in order to preserve its cherished role in BRICS and its increasingly warm relationship with Moscow.
Its search for legal loopholes could have far-reaching implications. “If member states refuse to execute ICC arrest warrants based on their own interpretations of the Rome Statute, contrary to the ICC chamber’s decisions, this makes the ICC unworkable,” said Hannah Woolaver, an associate professor of public international law at the University of Cape Town.
“The ICC has no independent powers to arrest suspects and relies entirely on the co-operation of its member states,” she told The Globe and Mail. “The ICC cannot function if individual member states can pick and choose which of the court’s decisions to abide by, and which obligations to execute.”
Mark Kersten, an assistant professor of criminal justice at the University of the Fraser Valley who has written extensively on ICC issues, said a Putin visit to South Africa would damage both the ICC and the rule of law in South Africa itself.
“Rightly or wrongly, every time a wanted person travels in defiance of the warrant, it saps the real and perceived legitimacy of the ICC,” he told The Globe.
“A visit would sap the ICC’s credibility, but perhaps the more significant impact would be on the credibility of South Africa’s courts.”
In 2015, South Africa allowed Sudan’s then-president Omar al-Bashir to enter and leave the country freely, despite an ICC arrest warrant against him for genocide. South African courts and an ICC appeals chamber both ruled that this was wrong. But this has failed to deter the government in the Putin case.
A committee headed by Deputy President Paul Mashatile is studying options for facilitating Mr. Putin’s visit to South Africa, and it believes it might have found a legal avenue. According to testimony by officials at a parliamentary committee last week, the government could focus on the fact that the ICC arrest warrant in the Putin case – unlike the al-Bashir case – did not originate from a referral by the United Nations Security Council. This, in turn, would allow it to argue that Mr. Putin has immunity under “international customary law” because Russia is not an ICC member state.
But there are serious doubts that the courts would agree with this. Prof. Woolaver said the ICC’s member states do not have the right to ignore ICC arrest warrants on the basis of their own interpretations of the Rome Statute’s immunity provisions. “This is ultimately for the ICC itself to decide,” she said.
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South Africa would have to go to the ICC and try to persuade it of the validity of its argument about immunity under customary international law – and the ICC is unlikely to be persuaded, since its own appeals chamber ruled against this argument in the al-Bashir case, Prof. Woolaver said. And even then, the government would still have to find a way around its own domestic version of the ICC law, she said.
The government acknowledges that it is still uncertain of its legal path. “We have a legal opinion, but another independent legal opinion has been sought so that we can make sure of the action that will be taken,” said Zane Dangor, director-general of South Africa’s international relations department, in testimony to the parliamentary committee.
Any attempt to help Mr. Putin on the ICC arrest warrant could also damage South Africa’s relations with the West and could undermine its efforts to portray itself as non-aligned in the Ukraine war. It would add to the evidence that South Africa is favouring Russia’s side of the war, at a time when President Cyril Ramaphosa is positioning himself as a neutral mediator in a planned African peace mission to Moscow and Kyiv.
A senior U.S. diplomat has already alleged that weapons and ammunition were secretly loaded onto a Russian cargo ship at a South African naval base in December. South Africa insists it did not authorize any arms shipment, but it has agreed to set up an independent inquiry into the allegation.