Picture: Supplied - South Africa has no interest in gambling on its future role and opportunities in the BRICS and should ensure that the BRICS Summit is welcome and safe in South Africa, the writer says.

By Dr André Thomashausen

The arrest warrant by the International Criminal Court (ICC) for Russia’s President Vladimir Putin is a point of heated debate because Putin has publicly announced that he would attend in person the summit of the BRICS nations in August in South Africa.

In anticipation, on May 29, the DA filed an application in the Gauteng High Court for an order declaring that the South African government shall be obliged by law to arrest Putin.

The proposition relies on the South African Supreme Court of Appeals’ reasoning in its Bashir judgment of March 15, 2016 (case no. 867/15) whereby immunity granted under the Diplomatic Immunities and Privileges Act 37 of 2001 (Dipa) would not apply whenever the special provisions of the newer Rome Statute Implementation Act, 27 of 2002 demanded the execution of an ICC arrest warrant.

In the words of Justice of Appeal Malcom Wallis who rendered the Bashir judgment, at no. 102: “Dipa is a general statute dealing with the subject of immunities and privileges enjoyed by various people, including heads of state. The Implementation Act is a specific act dealing with South Africa’s implementation of the Rome Statute. In that special area the Implementation act must enjoy priority… so Dipa continues to govern the question of head of state immunity, but the Implementation Act excludes such immunity in relation to international crimes and the obligations of South Africa to the ICC.”

Crucially for this ruling, was the court’s interpretation of the Implementation Act that its provisions must “be construed in a way that gives effect to South Africa’s international law obligations and the spirit, purport and objects of the Bill of Rights” (at no. 95) and these contained “a clear indication that South Africa does not support immunities when people are charged with international crimes.” (at no 93).

Simply put, the Supreme Court ruled that the Implementation Act and South Africa’s individual rights fixation, trump any rights of heads of state to immunity.

The decision is wrong. It placed a questionable interpretation of an act of Parliament, over the paramount constitutional duty to uphold and apply the rules of customary international law in South Africa, art 232 read together with art. 39(1)(b), by trying to attribute powers to the ICC above those granted in the Rome Statute or claimed by the ICC.

The ICC has, in its own practice, never denied the immunity of heads of state. With regard to heads of states that are not signatories of the Rome Statute, the ICC claims an invalidation of their immunity only in so far as a warrant of arrest was requested by the UN Security Council, effectively meaning with the consent of its five veto member states (China, the US, France, the UK and Russia). The logic behind the stance is as simple as it is compelling. The five veto member states of the Security Council are the five nuclear arms nations in the world and no heads of state in the world can be arrested against their will, unless the five-veto powers agree.

The DA application, at no. 41, either wilfully or ignorantly ignores the own stance of the ICC on immunity of heads of states that are not members of the ICC, by stating in respect of the requirement of a UN Security Council resolution that “the basis for the ICC jurisdiction is entirely irrelevant”.

The immunity of kings, emperors or heads of state is the oldest universally recognised principle of engagement between nations. It can be traced back 4 000 years to Phoenician times. It is the foundation of peaceful engagement of states with one another.

Originally, immunity was derived from religion. To hurt a king, ruling by divine right, would have desecrated God. In modern times, heads of state no longer rule by divine right but at the pleasure of their nations and voters. Nevertheless, the reasoning persists. To arrest a president, offends and aggresses the nation that chose its leader or acquiesces to his rule. Arresting a head of state can therefore only be considered in the most extreme and extraordinary circumstances, either if the country has submitted to the jurisdiction of the ICC, or with the consent of the UN Security Council.

The ICC warrant against Putin was issued on March 17 without a mandate by the UN Security Council. It was issued as a “secret warrant”, according to the statement on the ICC’s webpage, “in order to protect victims and witnesses and also to safeguard the investigation”. While it is secret, no defence is possible.

ICC prosecutor Karim Khan, after the issuing of the arrest warrant, pleaded on March 20 at a conference in London, for extra cash to pursue the prosecution of Putin for the crime of allegedly having overseen the transfer of children from war zones in Ukraine to safe places in Russia.

It is fair to conclude that the warrant was issued in the absence of evidence to substantiate the accusation. Putin would thus be expected to prove his innocence, in gross violation of the basic rule that an accused is to be presumed innocent.

The secret ICC warrant against Putin appears opportunistic. Its true motive is the derailment of the forthcoming BRICS summit and to place South Africa as the hosting nation in the middle of a global confrontation between the “West”, comprising less than 15% of the world population, against the “rest”. In this context, it is relevant to remember that the ICC is funded to the tune of 66% by the EU who is thus by far the ICC’s controlling shareholder.

The possible remedies are for South Africa to discreetly ask the ICC to undertake that it will not request the arrest of Putin in South Africa. The ICC warrant becomes executable only once a specific request is made by the ICC. South Africa could, in this context, promise to remain a member of the ICC and thereby save the ICC from a successive disengagement and exodus of most, if not all African states.

The other and more substantial remedy will be the passing in Parliament of an amendment to the Rome Statute Implementation Act. The amendment would insert a simple clause to clarify that the act does not derogate any of the provisions of the Diplomatic Immunities and Privileges Act 37 of 2001.

The status of any BRICS representation and proceedings in South Africa should be clarified in legislation along the same lines that apply to the work of the UN in New York. After its enlargement in August, with the accession of Egypt, Turkey, Saudi Arabia, the Emirates, Indonesia and others, the BRICS will become an organisation that will be more representative and powerful than the G20 or the EU. South Africa has no interest in gambling on its future role and opportunities in the BRICS and should ensure that the BRICS Summit is welcome and safe in South Africa.

*Thomashausen is professor emeritus of international law (Unisa), the former director of the Unisa of Foreign and Comparative Law and a German attorney.

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