SA granting diplomatic immunity to BRICS attendees – Still legally obliged to arrest Putin

By Paul Richardson

South Africa said it will provide diplomatic immunity to attendees of two meetings of officials from the BRICS group of countries — a practice the government said is routine — as it prepares to host Russian President Vladimir Putin at a summit in August. 

The immunity covers a meeting of foreign ministers from the bloc, which groups Brazil, Russia, India, China and South Africa, who will gather in Cape Town from June 1-2, according to a Government Gazette published on Monday. It also covers a summit of the BRICS heads of state scheduled to take place Aug. 22-24, the Department of International Relations and Cooperations said in the official notice.

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“This is a standard conferment of immunities that we do for all international conferences and summits held in South Africa irrespective of the level of participation,” the department said on Tuesday. “The immunities are for the conference and not for specific individuals. They are meant to protect the conference and its attendees from the jurisdiction of the host country for the duration of the conference.”

Putin, who South Africa invited to attend the August gathering, is wanted by the International Criminal Court on charges related to Russia’s war with Ukraine. As a signatory to the Rome Statute which established the court, South Africa would be obliged to arrest him if he attends.

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“These immunities do not override any warrant that may have been issued by any international tribunal against any attendee of the conference,” the department said.

The government previously drew international criticism in 2015, when it refused to execute an ICC arrest warrant for then-Sudanese President Omar al-Bashir, who had been indicted for war crimes and genocide, while he was attending a meeting of African leaders in Johannesburg. South Africa’s Supreme Court of Appeals ruled that the government had acted unlawfully and the ICC found that it had failed to failed to comply with its international obligations.  

Former South African President Jacob Zuma proposed withdrawing from the ICC in 2016, though that plan was later abandoned after he left office. The government is currently taking legal advice on how to handle the arrest warrant for Putin.

Among the options being considered by the government is a legislative amendment that would “domesticate” the Rome Statute, which could theoretically enable it to grant immunity to visiting heads of state. 

“Given that parliament is reaching the end of its current term, as well as the upcoming two-month recess between mid-June and early August, it is highly unlikely that any legislative amendments will be deliberated in earnest before the BRICS summit,” said Emma Louise Powell, the main opposition Democratic Alliance’s shadow minister for international relations. ““As things stand, South Africa has two options available: the minister of international relations and cooperation or the president must either retract Putin’s invitation to physically visit the country, or we must arrest him upon arrival.”

The DA on Tuesday said it had requested the High Court to issue a declaratory order that would compel the government to arrest Putin if he did visit. “This pre-peremptory court action aims to ensure that South Africa upholds its obligations in terms of the Rome Statute of the ICC,” the party said in a statement.  

–With assistance from Monique Vanek, Robert Brand and S’thembile Cele.

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