a king-size quandary for South Africa

The Global Prison Courtroom (ICC) has issued a world arrest warrant for Russian president Vladimir Putin for alleged warfare crimes in regards to the illegal deportation of kids from Ukraine to Russia. Such acts are warfare crimes below two articles of the Rome Statute, which established the courtroom.

ICC arrest warrants in opposition to sitting heads of state are uncommon.

Putin faces arrest if he units foot in any of the 123 signatory states to the statute. Of those, 33 are African states. The problem may just come to a head in August when South Africa is about to host the fifteenth summit of the Brazil, Russia, India, China and South Africa (BRICS) bloc in Durban.

As the pinnacle of a member state Putin has been invited to wait. However as a member of the courtroom, South Africa is obliged below Article 86 of the ICC statute and home legislation to cooperate totally by means of arresting the Russian president.

This isn’t the primary time the rustic has confronted any such quandary.

In 2015 Sudanese president Omar Al Bashir visited the rustic to wait a summit of African Union heads of state. When it comes to South Africa’s ICC duties, it used to be obliged to arrest Al Bashir, who have been indicted for violations of global humanitarian legislation and human rights legislation in Sudan’s Darfur area. The federal government, then below the presidency of Jacob Zuma, refused to arrest him, bringing up immunity from prosecution for sitting heads of state below global legislation.

The arrest warrant for Putin has put President Cyril Ramaphosa’s govt between a rock and a troublesome position. Complying with its home and global duties by means of executing the arrest warrant would alienate Russia. This is able to have bilateral penalties – the rustic remains to be thought to be a pal by means of the ruling African Nationwide Congress in line with the Soviet Union’s improve right through the fight in opposition to apartheid – in addition to ramifications inside the BRICS, given Moscow’s sturdy ties with Beijing.

It isn’t unreasonable to argue that Ramaphosa’s govt would need to tread moderately to steer clear of this kind of tensions.

Learn extra:
5 crucial reads on Russia-Africa members of the family

Then again, welcoming Putin, thus underscoring South Africa’s unbiased overseas coverage, would see the rustic lose global credibility.

One most likely impact is that South Africa may lose preferential business phrases. For instance, it will jeopardise its remedy of exports to america below the African Enlargement and Alternative Act (AGOA). AGOA has been used just lately as a punishing device in opposition to Ethiopia, The Gambia and Mali for “unconstitutional alternate in governments” and “gross violations of the world over recognised human rights”.

Importantly, South Africa’s business with america a long way exceeds that with Russia.

The quandary

When the Zuma management refused to arrest Al Bashir, it landed the federal government in judicial scorching water. South Africa’s Best Courtroom of Attraction discovered that it had violated each global and home legislation.

Following the ruling of the Best Courtroom of Attraction, Zuma’s govt notified the United International locations secretary common of its aim to withdraw from the Rome Statute. This in poor health prompt transfer used to be challenged within the Prime Courtroom in Pretoria. It dominated that the attention of withdrawal used to be unconstitutional because of the absence of prior parliamentary approval. In consequence, the federal government “withdrew from the withdrawal”.

In 2017, the ICC discovered that South Africa had failed in its duties below the Rome Statute in opposition to the courtroom by means of now not arresting and surrendering Al Bashir. The courtroom, alternatively, determined to not pursue the topic additional for pragmatic causes. It additionally reasoned that to refer South Africa to the United International locations Safety Council for noncompliance “would now not be a great way to foster long run cooperation”.

Within the match that Putin attended the approaching BRICS summit and Ramaphosa’s govt didn’t arrest him, it could imply that South Africa used to be flouting home law in addition to its personal charter. Article 165 (5) of the rustic’s charter makes it transparent that the federal government is certain by means of courtroom orders and choices.

Learn extra:
Al-Bashir: what the legislation says about South Africa’s tasks

How must South Africa reply to the quandary?

At this time the federal government’s reaction isn’t transparent. At the one hand, Ramaphosa’s spokesperson stated that the rustic used to be acutely aware of its duties to arrest Putin and give up him to the ICC.

Then again, Naledi Pandor, the overseas members of the family minister, showed the invitation to Putin to wait the BRICS assembly. She famous that cupboard must come to a decision on the right way to reply in view of the ICC warrant.

The federal government would need to steadiness its ICC duties, home duties and its traditionally pleasant members of the family with Russia moderately. Except it’s hellbent on defying its personal courtroom choices and regulations, there are alternatives to be had to steer clear of every other spherical of global condemnation, and that might assist it steer clear of attainable courtroom battles by means of civil society for noncompliance with the rustic’s personal regulations and courtroom choices.


In the beginning, South Africa must proceed to increase a call for participation for Russia to wait the summit. However, via diplomatic channels, request that the Russian delegation be led by means of its overseas minister, Sergei Lavrov. Lavrov has in essence grow to be the face of Russia at the global degree because the get started of the warfare in Ukraine.

Secondly, right through the COVID pandemic, it was transparent that bodily presence at global gatherings for heads of states may well be substituted with digital attendance. The UN Normal Meeting set a just right benchmark for this when heads of state submitted video statements because of pandemic restrictions. Putin may just attend the BRICS summit nearly.

The want to signal summit documentation by means of the heads of state isn’t an obstacle to digital attendance. Putin can signal the paperwork electronically or after the summit, if a non-electronic signature is needed.

The ball is now within the South African govt’s courtroom. The hope is that it makes the correct resolution, one that is in the most efficient pursuits of the rustic and its other folks – now not Russia or the likes of america, particularly as neither main energy is a signatory to the ICC’s statute. Neither must prescribe to South Africa what it must come to a decision.

Most significantly, the federal government should now not trample by itself regulations and courtroom choices. Compliance with the charter should be the concern. You decide this is within the pursuits of South Africa and its other folks would additionally supply steering to the opposite 32 African ICC signatory states, must they ever be confronted with a equivalent quandary at some point.

This newsletter used to be co-authored with Sasha-Lee Stephanie Afrika (LLD), Legal professional of the Prime Courtroom of South Africa and previous lecturer at Stellenbosch College and College of Johannesburg.

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