The International Criminal Court (ICC) has issued an international arrest warrant for Russian President Vladimir Putin on alleged war crimes in connection with the illegal deportation of children from Ukraine to Russia. Such acts are war crimes under two articles of the Roman Statuteestablished by the court.
Arrest warrant from the ICC against it Seated heads of state are rare.
Putin faces arrest if he sets foot in either of them 123 signatory countries to the statute. Of these, 33 are African countries. The issue could come to a head in August when South Africa hosts the 15th Brazil-Russia-India-China-South Africa (BRICS) bloc summit Durban.
Putin has been invited as head of state. But as a member of the Court, South Africa is bound by Article 86 of the ICC Statute and domestic law fully cooperate in arresting the Russian President.
This is not the first time the country has faced such a dilemma.
2015 President of Sudan Omar Al Bashir visited the country attend a summit African Union Heads of State. In relation to South Africa’s ICC obligations, it was obliged to arrest Al Bashir, who had been arrested charged for violations of international humanitarian law and human rights in the Darfur region of Sudan. The government of the time, under the presidency of Jacob Zuma, refused to arrest him. citing immunity from prosecution for incumbent heads of state under international law.
The arrest warrant for Putin has thrown President Cyril Ramaphosa’s government between stone and stone. Fulfilling its domestic and international obligations by executing the arrest warrant would alienate Russia. This would have had bilateral ramifications – the country is still considered a friend of the ruling African National Congress due to its support for the Soviet Union in the fight against apartheid – as well as bifurcations within the BRICS Moscow’s close ties with Beijing.
It is not unreasonable to argue that the Ramaphosa government wishes to tread carefully to avoid such tensions.
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On the other hand, welcoming Putin Underlining South Africa’s independent foreign policythe country would lose credibility internationally.
A likely effect is that South Africa could lose its trade preferences. For example, it could jeopardize its treatment of exports to the US under the African Growth and Opportunity Act (AGOA). AGOA was recently used as a punitive tool against Ethiopia, Gambia and Mali for “unconstitutional changes of government”. “gross violations of internationally recognized human rights“.
Important, South Africa’s trade with the US far exceeds that with Russia.
When the Zuma government refused to arrest Al Bashir, it got the government into legal trouble. South Africa’s Supreme Court of Appeal found that it violated both international and national law.
Following the Supreme Court of Appeals ruling, Zuma’s government notified the Secretary-General of the United Nations of its intention to withdraw from the Rome Statute. This unwise move was challenged in the High Court in Pretoria. It reigns that the resignation decision was unconstitutional due to a lack of parliamentary approval. Hence the government “resigned from the revocation”.
In 2017 the ICC found that South Africa had failed in its Rome Statute obligations to the court by failing to arrest and extradite Al Bashir. However, the court decided not to pursue the matter further pragmatic reasons. It also justified referring South Africa to the United Nations Security Council for non-compliance “would not be an effective way to encourage future collaboration”.
If Putin attends the upcoming BRICS summit and Ramaphosa’s government fails to arrest him, it would mean South Africa flouting both national legislation and its own constitution. Article 165 (5) of the country Constitution clarifies that the government is bound by court orders and decisions.
Continue reading: Al-Bashir: What the law says about South Africa’s obligations
How should South Africa react to the dilemma?
At this time, the government’s response is not clear. On the one hand the speaker of Ramaphosa called that the country is aware of its obligation to arrest Putin and hand him over to the ICC.
On the other hand, Foreign Minister Naledi Pandor confirmed this Invitation to Putin to attend BRICS meeting. She noted that the cabinet must decide how to respond to the ICC’s arrest warrant.
The government wants to carefully balance its ICC obligations, domestic responsibilities, and historically friendly relations with Russia. Unless it is determined to flout its own court decisions and laws, there are options to avoid another round of international convictions, and that would help it avoid potential civil society lawsuits for failing to comply with the country’s own laws and court decisions.
First, South Africa should continue to invite Russia to attend the summit. But, through diplomatic channels, demand that the Russian delegation be led by its foreign minister, Sergey Lavrov. Lavrov has essentially become the face of Russia international stage since the beginning of the war in Ukraine.
Second, during the COVID pandemic, it became clear that physical presence at international gatherings of heads of state could be replaced by virtual presence. The UN General Assembly, as heads of state, has set a good standard for this submitted video statements due to pandemic restrictions. Putin could attend the BRICS summit virtually.
The need for heads of state to sign off on the summit documentation is not an obstacle to virtual participation. Putin can sign the documents electronically or after the summit if a non-electronic signature is required.
The ball is now in the hands of the South African government. The hope is that it makes the right decision, one that is in the best interests of the country and its people – not Russia or the US, especially since none of the major powers signed the ICC statute. Neither should dictate what South Africa has to decide.
Above all, the government must not trample on its own laws and court decisions. Compliance with the Constitution must take precedence. A decision that is in the interests of South Africa and its people would also serve as a guide for the other 32 African signatories to the International Criminal Court should they ever face a similar dilemma in the future.
This article was co-authored with Sasha-Lee Stephanie Afrika (LLD), Attorney of the High Court of South Africa and former Lecturer at Stellenbosch University and the University of Johannesburg.
This article is republished by The conversation, a nonprofit news site dedicated to sharing ideas from academic experts. If you found it interesting, you might do it subscribe to our weekly newsletter.
It was written by: Sascha-Dominik (Dov) Bachmann, University of Canberra.
Sascha-Dominik (Dov) Bachmann does not work for, does not consult for, own any shares in or receive funding from any companies or organizations that would benefit from this article, and has disclosed no relevant affiliations beyond her academic appointment.
Source : news.yahoo.com