By Dr Noluthando Phungula

BRICS South Africa Sherpa Anil Sooklal recently revealed that Russian President Vladimir Putin has accepted the invitation to attend an in-person BRICS summit.

Sooklal said that Russia was “preparing to attend the summit”. President Cyril Ramaphosa’s government has a tough decision to make on what to do as soon as Putin arrives on South African soil, as he has accepted the in-person invitation to attend this year’s BRICS summit in August.

South Africa is one of the 123 nations that are signatory to the ICC, 33 of these are African states. In theory as a member of the court, South Africa is obliged under Article 86 of the ICC statute and domestic law, to co-operate fully by arresting the Russian president as soon as he steps off the plane and hand him to The Hague for trial.

Despite the warrant of arrest issued against Putin, South Africa did not withdraw the invitation. However, the decision to invite the Russian head of state sent a message to the global stage on the stance Pretoria is taking on Russia.

There are many contributing factors that can explain SA’s stance. It would seem the long-standing relations between the two states during the liberation struggle have influenced South Africa’s stance to extend and maintain their stance on the invitation. Moreover, BRICS has proven to be a significant organisation for South Africa.

Since the Russian-Ukraine conflict began, South Africa has maintained a neutral stance on it, failing to condemn Russia. South Africa abstained from voting in the UN General Assembly in March last year on the condemnation of the Russian invasion of Ukraine conflict.

However, SA recently held a joint military exercise with Russia and China, and this move has been interpreted by some as South Africa’s tilt towards Russia. Moreover, South Africa is currently facing a serious energy crisis and has requested Russia to expand its nuclear power station, and Russia has responded positively, committing to finance the project.

Putin accepts invitation: What now?

There have been reports from the Minister of International Relations and Co-operation, Naledi Pandor, that Pretoria is seeking legal counsel and also engaging various relevant stakeholders. Back in 2015, after the failure to arrest former Sudanese President Omar al-Bashir, the country faced much criticism from the international community for its failure to make the arrest.

The country then attempted to withdraw from the Roman Statute soon after the controversy but the South African courts ruled that the government needed the approval of Parliament first and deemed the withdrawal unconstitutional. Pretoria would later withdraw from the withdrawal due to the legal complications and backlash.

During the last few weeks, once again, there have been speculations of a withdrawal from the ICC, but this process is far too complex as ruled by the courts in the al-Bashir case.

Another crucial factor here is the time constraints, considering the imminent visit.

However, should Pretoria miraculously pass the legislation, the state would still be bound by the Rome Statute which prescribes that the withdrawal only takes effect 12 months after it is applied for. As such, even after withdrawal, Pretoria would still be obliged to arrest Putin 12 months after the application for withdrawal.

Pretoria also has the option to ask the ICC to excuse the state from the obligation to arrest Putin but it is very unlikely that this request will be granted. Alternatively, Pretoria can attempt to amend South Africa’s ICC Implementation Act to insert and allow for immunity against prosecution of a sitting head of state.

This move would also involve many processes and the question remains, if Pretoria has enough time considering the summit sits in August this year.

To pull the al-Bashir case would mean allowing Putin to come in and escort him out and not arrest him. This move would be a violation of the ICC international obligation, a violation of South African law and a violation of the court ruling. SA is bound to lose international acceptance should it pull this card.

Differences between al-Bashir and Putin cases

It is worth noting that there are differences between the Putin and al-Bashir cases. One a former African head of state, and on the other hand the head of state of one of the strongest European states within the International system.

Often considered the most powerful man in the world with an arsenal of nuclear weapons, Putin is the first ever head of state with a permanent seat on the United Nations Security Council to face a warrant of arrest. In this regard, the ICC’s move marks a truly historic moment for so-called international criminal justice.

The cases also differ on their facts and merits. Al-Bashir was indicted by the ICC based on a referral by the UN Security Council. Because of the referral from the UNSC, the ICC was not obliged to seek Sudan’s permission – as a non-ICC member – to arrest him.

Russia is not a member of the ICC and has not recognised the jurisdictional authority of the ICC. In addition, the UNSC did not refer the matter to the ICC. However, ICC was able to indict Putin because Ukraine had accepted the ICC’s jurisdiction. Some legal experts believe the fact that there was no UN Security Council referral of Putin could mean the ICC would need to seek the approval of Russia as a non-ICC member before arresting him. Which it obviously would not give.

SA: What now?

It is highly improbable that Pretoria will arrest Putin; my bet is that Pretoria is searching for a needle in a haystack in the form of a legal loophole. Arresting Putin would have dire and even deadly consequences for SA, as Russia might retaliate. It could also lead to SA being expelled from BRICS, an organisation it values very highly.

The case presents a complex geopolitical dilemma for South Africa. Pretoria needs to balance its ICC obligations, domestic responsibilities, historically friendly relations with Russia and prospects and ambitions within the BRICS grouping carefully to avoid unfavourable repercussions. The state still has a long way to go in trying to find its way in geopolitics and power competitions. Amahlathi aphelile for South Africa as the state has often chosen to remain neutral.

* Dr Noluthando Phungula is from the Institute for Pan African Thought and Conversation at the University of Johannesburg.

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