A huge scale dilemma for South Africa

International Criminal Court He issued an international arrest warrant of Russian President Vladimir Putin for war crimes related to the illegal deportation of children from Ukraine to Russia. Such actions are considered war crimes under two articles of the law Rome Statutewho established the court.

Arrest warrants from the International Criminal Court v It is rare for heads of state to sit down.

Putin faces arrest if he steps foot in either 123 signatories for the basic system. Of these, 33 are African countries. The issue could come to a head in August when South Africa prepares to host the 15th summit of the Brazil, Russia, India, China and South Africa (BRICS) bloc in Durban.

As the head of a member state, Putin has been invited to attend. But as a member of the Court, South Africa is bound by Article 86 of the ICC Statute and Local law For full cooperation by arresting the Russian president.

This is not the first time the country has faced such a dilemma.

2015 Sudanese President Omar al-Bashir visited the country to attend a summit Heads of State of the African Union. In terms of South Africa’s obligations to the ICC, it was compelled to arrest Al-Bashir, who was Accused For committing violations of international humanitarian law and human rights law in the Darfur region of Sudan. The government headed by Jacob Zuma refused to arrest him. Invoking immunity from prosecution for sitting heads of state under international law.

The arrest warrant against Putin has put President Cyril Ramaphosa’s government between a rock and a hard place. Complying with its domestic and international obligations by implementing the arrest warrant would alienate Russia. This would have dual consequences – the country is still considered a friend by the ruling African National Congress based on the Soviet Union’s support during the struggle against apartheid – as well as repercussions within the BRICS, given Moscow’s strong ties with Beijing.

It is not unreasonable to say that the Ramaphosa government wants to tread carefully to avoid any such tensions.

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Read more: Five essential readings on Russian-African relations

On the other hand, welcoming Putin like this Emphasis on the independent foreign policy of South Africawill see the country lose its international credibility.

One possible effect is that South Africa could lose its preferential trading terms. For example, it could jeopardize its treatment of exports to the United States under Africa Growth and Opportunity Act (AGOA). Recently AGOA has been used as a tool to punish Ethiopia, Gambia and Mali for “unconstitutional change of governments” and Gross violations of internationally recognized human rights“.

More important , South Africa’s trade with the United States far exceeds that with Russia.

dilemma

When the Zuma administration refused to arrest al-Bashir, it landed the government in a judicial limbo. South African Supreme Court of Appeal is found It violated international and domestic law.

After the Supreme Court of Appeal’s decision, Zuma’s government notified the UN Secretary-General of its intention to withdraw from the Rome Statute. This unwise move was challenged in the Pretoria High Court. He. She to rule That the declaration of withdrawal was unconstitutional in the absence of prior parliamentary approval. Hence, the government “withdraw from withdraw”.

in 2017, Found the International Criminal Court That South Africa has failed in its obligations under the Rome Statute to the Court not to arrest and extradite Al-Bashir. However, the court decided not to pursue this case Practical reasons. It also justified it by referring South Africa to the United Nations Security Council for non-compliance “It will not be an effective way to promote cooperation in the future”.

In the event that Putin attended the upcoming BRICS summit and the Ramaphosa government did not arrest him, it would mean that South Africa was violating local legislation as well as its constitution. Article 165 (5) of the country constitution It shows that the government is bound by court orders and decisions.

Read more: Al-Bashir: What does the law say about the duties of South Africa?

How should South Africa respond to this dilemma?

At the moment the government’s response is not clear. On the one hand, the spokesperson for Ramaphosa He said That the state was aware of its obligations to arrest Putin and hand him over to the International Criminal Court.

On the other hand, External Relations Minister Naledi Pandor confirmed Invite Putin to attend the BRICS meeting. She noted that the Council of Ministers will have to decide how to respond in light of the ICC memorandum.

The government may wish to carefully balance its obligations to the ICC with domestic responsibilities and its historically friendly relations with Russia. Unless it is serious about challenging court decisions and its own laws, there are options available to avoid another round of international condemnation, and this should help it avoid potential court battles by civil society for non-compliance with the country’s laws and court decisions.

Options

First, South Africa should continue to invite Russia to the summit. However, through diplomatic channels, they demanded that the Russian delegation be headed by its foreign minister, Sergey Lavrov. Lavrov, in essence, became the face of Russia international theatre Since the beginning of the war in Ukraine.

Secondly, during the COVID pandemic, it has become clear that physical attendance at international gatherings of heads of state can be replaced by a virtual one. The United Nations General Assembly has set a good standard for this for heads of state Video data provided due to pandemic restrictions. Putin could attend the BRICS summit virtually.

The need for summit documents to be signed by Heads of State is not an impediment to physical attendance. Putin can sign the documents electronically or after the summit, if a non-electronic signature is required.

The ball is now in the South African government’s court. The hope is that you will make the right decision, one that is in the best interests of the country and its people – not Russia or the likes of the United States, especially since neither of the two major powers has signed the ICC Statute. Neither of them should tell South Africa what to decide.

And most importantly, the government should not trample on its own laws and court decisions. The priority should be adherence to the constitution. Making a decision in the best interests of South Africa and its people will also provide guidance for the 32 other African signatories to the ICC, should they face a similar dilemma in the future.

This article was co-authored by Sacha Lee Stephanie Afrika (LLD), a South African High Court lawyer and former lecturer at Stellenbosch University and the University of Johannesburg.

This article has been republished from Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. If you find it interesting, you can Subscribe to our weekly newsletters.

written by: Sasha Dominic (Dove) BachmannAnd University of Canberra.

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Sascha-Dominik (Dov) Bachmann does not work for, receive funding from, consult with, or own any company or organization, and has disclosed no relevant affiliations following his academic appointment.