JOHANNESBURG—The South African government has granted diplomatic immunity to all officials set to be involved in the upcoming BRICS summit, including Russian President Vladimir Putin.
Meetings of heads of state and foreign affairs ministers from the BRICS bloc of nations (Brazil, Russia, India, China, and South Africa) are scheduled for several South African cities from Aug. 22 to Aug. 24.
“Special envoys” from nations across the globe, most notably Middle Eastern powers including Iran and the United Arab Emirates, have also confirmed attendance.
But the Russian leader’s planned visit has been in doubt ever since the International Criminal Court (ICC) in March issued a warrant for his arrest for alleged war crimes in Ukraine.
South Africa, as a signatory to the Rome Statute, which established the ICC in 2002, is obliged by its own law to take Putin into custody should he visit its territory.
Presidential adviser Obed Bapela recently told The Epoch Times that the African National Congress (ANC) government would “never” arrest Putin, because to do so would be a “declaration of war” on Moscow.
He said the administration run by South African President Cyril Ramaphosa was working on a “multifaceted plan” that would allow the Russian president to attend the BRICS summit in person, “without fear of arrest.”
Legal analysts said it seemed as if the granting of diplomatic immunity was integral to that plan.
Pandor’s notice said Putin and his international counterparts would be granted “immunities and privileges” provided in terms of Section 6(1)(a) of South Africa’s Diplomatic Immunity and Privileges Act.
University of Cape Town law expert Pierre de Vos told The Epoch Times that the government was, ironically, using U.N. legislation to accord immunity to Putin.
Section 6(1)(a) of the act establishes that immunities “are specifically provided for in the Convention on the Privileges and Immunities of the United Nations, 1946 ... in respect of the participation in conferences and meetings.”
De Vos, however, pointed out that South Africa’s domestic ICC law in its present form declares that “head of state immunity shall not apply for cases before the ICC.”
South African Minister of Justice Ronald Lamola told The Epoch Times that the government was “in the process of rushing to amend our domestic ICC laws so that they exempt sitting heads of state from arrest” on South African soil.
A senior official in the South African Department of International Relations told The Epoch Times that Putin’s “personal presence and input” was considered essential by Ramaphosa and Pandor, given the “grave importance” of the 2023 BRICS summit.
“They expect this summit is going to lay the foundation for a global shift. BRICS is going to be transformed with the addition of new members, especially from the Middle East, and it’s going to become the world’s biggest economic bloc, a very powerful organization,” the official said.
“It’s unimaginable that this change will happen without the presence of the leader of the superpower of Russia, whatever is happening in Ukraine or elsewhere.”
Although the ANC government claims “non-alignment” in the war in Ukraine, much of the international community considers it to be firmly on the side of Russia.
ANC ministers and officials, political as well as military, continue to visit the Kremlin, always stating the need for “close cooperation and friendship” with Moscow.
Russia’s trade ties with South Africa are minuscule and dwarfed by Pretoria’s economic cooperation with the United States and the European Union, Ukraine’s major allies.
But the ANC often emphasizes its strong “emotional” connection to Russia, by virtue of the fact that the former Soviet Union supported its armed struggle against apartheid from the early 1960s to the late 1980s.
Ramaphosa’s government continues to defy the West by allowing sanctioned Russian ships and aircraft into its harbors and military air bases. The United States has also accused it of illegally supplying weapons and ammunition to Russia, which the ANC administration denies.
Several ANC officials close to Ramaphosa told The Epoch Times that the government remained convinced that there was a “legal loophole” that would allow Putin to personally attend the BRICS summit without violating the ICC Charter.
De Vos said they were probably referring to Article 98 of the Rome Statute.
“Article 27 states that even sitting presidents and prime ministers and rulers of all kinds are not immune from ICC prosecution by the ICC. But Article 98 can be read as providing an exception to this general rule,” he said.
Article 98(1) reads: “The court may not proceed with a request for surrender or assistance which would require the requested state [in this case South Africa] to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person ... of a third state, [in this case Putin and Russia] unless the court can first obtain the cooperation of that third state for the waiver of the immunity.”
De Vos said the ANC appeared to be interpreting this as suggesting that the ICC couldn’t request it to arrest Putin unless Russia agreed to waive Putin’s immunity from prosecution, which the Kremlin obviously wouldn’t agree to.
He said the government’s interpretation of Article 98 would need to be tested in a South African court, and that’s exactly where it’s headed.
The official opposition party, the Democratic Alliance (DA), has applied to the Pretoria High Court to order the government to arrest Putin as soon as the ICC requests South Africa to do so should he set foot in the country.
International justice expert at the Southern Africa Litigation Centre Atilla Kisla said the DA’s case had a “good chance” of succeeding, as a judge would likely reach the reasonable conclusion that South Africa’s present ICC laws compelled the state to arrest alleged war criminals.
“The judge can only make a decision based on the letter of the law as it stands right now. The government has not yet amended the ICC laws. The DA is taking preemptive action and trying to prevent any attempts by the state to let Putin off the hook or to make it difficult and uncomfortable for the state to do so,” Kisla told The Epoch Times.
In his affidavit to the court, DA leader John Steenhuisen wrote: “This is plainly a constitutional matter. It involves the violation or possible violation of the rule of law [a foundational value of the Constitution] and separation of powers by the government, including by way of the threatened violation of South Africa’s international law obligations, which have been given effect domestically by the Implementation Act, which Parliament has bound South Africa to and on which the Supreme Court of Appeal has previously ruled.”
In June 2015 a court ruled that the South African government should immediately arrest then-Sudanese President Omar al-Bashir, who the ICC had charged with crimes against humanity, war crimes, and genocide relating to conflict in his country’s Darfur region.
However, the ANC administration, then led by President Jacob Zuma, ignored the court order and allowed Al-Bashir to leave the African Union summit and board a plane back to Khartoum, Sudan.
In the wake of the latest controversy around Putin’s attendance of the BRICS gathering, Pretoria has again labeled the ICC “unfair” and “selective” about who it decides to prosecute.
ANC leaders are currently debating the implications of withdrawing South Africa’s membership to the court.
