Virendra Pandit
New Delhi: South Africa has granted diplomatic immunity to Russian President Vladimir Putin, against whom the International Criminal Court (ICC) in The Hague had issued an arrest warrant two months ago for his alleged war crimes in Ukraine, enabling him to participate in the forthcoming BRICS Summit in August 2023.
Pretoria has granted diplomatic immunity to all international participants, including President Putin and other Russian officials, at BRICS-related events to be held in the country, local media reported on Tuesday.
The immunities and privileges in terms of the United Nations Convention grant immunity from personal arrest or detention.
South Africa’s International Relations and Cooperation Minister Naledi Pandor issued a gazette notice under the Diplomatic Immunity and Privileges Act for immunity to be granted to all international officials at BRICS-related events in the country, according to the Daily Maverick, a South African-based publication.
The notice, signed on May 19 and gazetted on Monday, states that President Putin and his international counterparts will be granted immunities and privileges provided in terms of Section 6(1)(a) of the Act.
A spokesperson said the notice was “routine,” and such notices were issued every time there was a similar international meeting in South Africa.
The Act states that this immunity is granted to officials and experts of the United Nations, any specialized agency or organization, and representatives of any state participating in an international conference or meeting convened in South Africa.
“It provides immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, and immunity from legal process of every kind,” it said.
The ICC in The Hague issued a warrant for President Putin’s arrest in March. Since South Africa is a member of the ICC, it is obliged to arrest Putin when he is in the country.
Despite this, South Africa, as the current chair of the BRICS alliance, has officially invited Putin to the Summit in August.
The International Relations Department is also seeking a legal opinion on how to deal with the ICC’s arrest warrant. President Putin’s possible attendance at BRICS has been a bone of contention since the warrant was issued.
Meanwhile, Russian Foreign Minister Sergey Lavrov will take part in the BRICS foreign ministers meeting in Cape Town on Thursday and Friday this week.
However, Opposition leader John Steenhuisen filed an application with a court seeking an urgent order to the government to arrest Putin if the ICC requests South Africa to arrest him in case he sets foot in the country, the Daily Maverick reported.
He sought an order confirming that the director-general of justice, on receipt of a request from the ICC to arrest and surrender Putin, must forward the arrest warrant to a magistrate.
The South African government had indicated that it is seeking a legal loophole that would allow it to host Putin without violating the ICC Rome Statute. This loophole would be found in Article 98 of the Rome Statute.
While Article 27 of the Rome Statute stipulates that even sitting heads of state are not immune from prosecution by the ICC, Article 98 appears to provide an exception to this general rule.
On the face of it, this article appears to suggest that the ICC could not ask Pretoria to arrest and hand over Putin unless Russia agreed to waive Putin’s immunity from prosecution – which Moscow would obviously not give.
South Africa might face an even greater obstacle in its own ICC Implementation Act which is also explicit that sitting heads of state do not enjoy immunity from prosecution – but without any qualification like Article 98, the Daily Maverick reported.