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On 17 March 2023, the International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, accusing both of unlawful deportation of population and unlawful transfer of population from occupied areas of Ukraine to the Russian Federation. South Africa is now in a difficult position since it is hosting the 15th BRICS Summit in Durban from 22 to 24 August 2023, where Putin has been invited, and it is obligated under both international and domestic law to arrest and surrender him to the ICC if he chooses to travel to South Africa.
Should SA arrest Putin? Not so fast.
By Ivo Vegter
South Africa has a strained relationship with the International Criminal Court. Although nominally a member, it is rightly sceptical of the institution.
On 17 March 2023, the International Criminal Court (ICC) announced that it had issued arrest warrants for a Mr. Vladimir Vladimirovich Putin and a Ms. Maria Alekseyevna Lvova-Belova, both allegedly being ‘responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation’.
The latter, Ms. Lvova-Belova, is Commissioner for Children’s Rights in the Office of the President of the Russian Federation. And the former, Mr. Putin, may ring a bell as her boss, the holder of the Office of the President of the Russian Federation.
This places South Africa in a unique quandary. It has invited the leaders of the BRICS group of countries (Brazil, Russia, India, China, South Africa) to attend, in person, the 15th BRICS Summit in Durban from 22 to 24 August 2023.
Under both international and domestic law, it would be obliged to arrest Putin and surrender him to the custody of the ICC, should he choose to travel to South Africa for the event.
This obligation was well established on a previous occasion, which almost exactly mirrors the present one. In 2015, there was an ICC arrest warrant out for Omar al-Bashir, the president of Sudan, when he attended the 25th Assembly of the African Union in Johannesburg.
The South African government declined to arrest him, inviting both local and global condemnation.
It argued that foreign heads of state were subject to immunity from prosecution by virtue of their position, as well as being entitled to diplomatic immunity.
The High Court and the Supreme Court of Appeal, however, pointed to the domestic law that implements the Rome Statute, the treaty which created the International Criminal Court, and held that the government’s failure to arrest and detain al-Bashir for surrender to the ICC ‘was inconsistent with South Africa’s obligations’ under both international and domestic law, and was therefore unlawful.
There was some talk about whether South Africa ought to be taken to task before either the Assembly of State Parties to the Rome Statute, or the United Nations Security Council. However, nothing came of it, continuing a well-established history of toothlessness on the part of the ICC.
The South African government responded by declaring its intention to withdraw from the Rome Statute, but again, the courts intervened, ruling the move to be unconstitutional without the prior approval of Parliament. The government ultimately ‘withdrew from the withdrawal’.
Now, it faces the same conundrum again. It would be seriously disruptive to South Africa’s foreign policy to arrest the sitting president of a partner in the BRICS alliance.
(Let’s leave aside, for now, whether South Africa ought to be a member of BRICS at all, instead of aligning itself more closely with its major trading partners – and liberal constitutional democracies – in the West. Let’s also leave aside whether or not Putin ought to face prosecution as a war criminal. I do not for a moment defend Putin, but my opinion on his guilt is not the point.)
Of the five nations in BRICS, South Africa is by far the smallest, and most dependent on the others. The goodwill of Russia and China, at the very least, would be the price for action against Putin. South Africa can ill afford to lose that goodwill.
South Africa could request that Russian foreign minister Sergei Lavrov deputise for Putin. It could request that Putin attend by video-conference, instead of in person.
Neither would likely sit well with Putin, whose ego may not permit him to hide in Moscow like a mouse too scared to come out of its hole. Travelling to Durban would also be an excellent, albeit risky, test of South Africa’s loyalty and deference to Putin and the rest of BRICS. (Let us not forget our place in the pecking order.)
The final option is to repeat the refusal to act, as the government did in 2015 with al-Bashir. It would have to do so despite the existence of court orders declaring such refusal to be unlawful, and despite the existence of a Constitution that requires the government to comply with domestic law and lawful orders of the court.
This could cause a very significant legal and constitutional crisis for the government, which it probably wouldn’t like to invite less than a year before critical national elections.
In an amusing statement, EFF leader Julius Malema makes a case why Putin ought to be welcomed in South Africa. He said: ‘We don’t want the ICC’s hypocrisy to apply here in our country.’
This is, in fact, a fairly good argument. The ICC is a seriously flawed institution.
Neither Russia nor Ukraine are signatories to the Rome Statute, for example, yet the ICC assumes jurisdiction over the citizens – and rulers – of those countries. Imagine the outcry if it tried to indict a sitting US president.
In fact, countries representing more than half the world’s population, including the United States, China, India, Pakistan and Indonesia, are not members of the ICC.
The ICC has a long history of prosecuting only Africans, including several African heads of state, including al-Bashir, Uhuru Kenyatta and the late Moammar Gaddafi.
From its founding in 1998, it took 24 years, to 2022, before it indicted the first non-African defendant in relation to war crimes allegedly committed in the country of Georgia.
The ICC has been notably silent about the invasion of Iraq, despite well-documented and well-publicised war crimes such as the abuses at Abu Ghraib. It has also been silent about other questionable actions by Western nations, such as missile strikes on civilians and bank-rolling warlords accused of human rights abuses in Afghanistan.
These apparent blind spots make a mockery of the rules-based global order that is supposed to underlie international institutions.
At the time of the al-Bashir case, I wrote an in-depth article questioning the legitimacy of the ICC as an institution. It remains valid, today.
(That article contains a dead link to a dated but very thorough legalistic analysis, A Lawless Global Court, published by the Hoover Institute in 2004. It can now be found here).
Although the ICC represents a certain ideal of global justice and peace, there are serious questions of bias, legality and representation that undermine its legitimacy.
I’m surprised the South African government did not respond to the court ruling declaring its attempted withdrawal unconstitutional by asking Parliament to ratify such a withdrawal. It would have good cause to do so.
Any global criminal court that presumes to try individuals needs to be established on the basis of broad representivity, as opposed to representing less than half the global population.
It needs to be based on clear, publicised and just laws that are applied evenly and without bias, and not almost solely against Africans.
It should act upon cases referred to it by national governments, rather than instituting cases of its own volition.
It shouldn’t be able to act as judge, jury and executioner, as the ICC does today.
It may be possible to establish a global judiciary to rule on international law applied to individuals, but the ICC has so many flaws, it cannot really be considered a successful attempt at doing so.
Until that is remedied, dilemmas like the one facing South Africa vis-à-vis Vladimir Putin will continue to drag the ICC into controversy.
This article was first published by Daily Friend and is republished with permission
The views of the writer are not necessarily the views of the Daily Friend or the IRR
Copyright of The Daily Friend 2023
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