South Africa's diplomatic dilemma with Putin

South Africa's Foreign Minister Naledi Pandor has again confirmed that Russian President Vladimir Putin has been invited to attend the BRICS summit scheduled for August in Johannesburg.

This is despite Putin being the subject of an International Criminal Court (ICC) arrest warrant for war crimes. He is accused of forcibly deporting children from Russian-occupied territory in Ukraine.

South Africa is a signatory to the ICC's founding treaty, the Rome Statute, and is technically obliged to arrest Putin if he enters the country and send him to The Hague.

Putin's possible attendance at the summit has been deeply contentious since the warrant was issued in March. Now the government of President Cyril Ramaphosa is desperately exploring all options to sidestep a diplomatic firestorm.

Move the summit?

Speaking during a two-day planning meeting of BRICS foreign ministers, which started on Thursday, Foreign Minister Pandor also stressed that the August summit would be held in South Africa.

Media and analysts have suggested that Ramaphosa's government is considering moving the summit to another BRICS nation. Of the five BRICS members, only Brazil and South Africa are signatories to the Rome Statute, whereas China, India and Russia aren't.

Reuters news agency cited a senior South African government official earlier this week as saying one solution out of the diplomatic quandary would be to ask last year's BRICS chair, China, to host the summit.

Former South African President Thabo Mbeki has also said that the summit was unlikely to take place in South Africa."Because of our legal obligations, we have to arrest President Putin, but we can't do that," Mbeki said in interview with a Johannesburg radio station in late last month.

Tell Putin to stay at home?

Another possibility apparently being floated is to make the summit online as it was during the last three pandemic years.

Others say South Africa should simply disinvite Putin. "The obvious thing for our government to do would be to withdraw the invitation," parliamentarian Glynnis Breytenbach from the Democratic Alliance, the leading opposition party, told DW TV this week.

But it's not that simple, said Dirk Kotze, a political science professor at the University of South Africa in Pretoria, because it's not a bilateral event such as a state visit by the Russian president to South Africa.

"Rather, South Africa is acting in its capacity as the rotating chairperson of BRICS, so it's a BRICS event," he said. "Therefore the BRICS group all together must decide whether they will uninvite President Putin or change the format of this summit."

To leave or not to leave the ICC?

South Africa has long been critical of the ICC and the issuing of the arrest warrant for Putin rekindled the debate within the ruling ANC party over the country's ICC membership.

But the option of leaving the ICC to avoid the Putin situation is off the cards, according to analysts.

South Africa formally gave notice that it would leave the ICC back in 2016 — although South Africa's High Court subsequently ruled that the withdrawal notice was unconstitutional.

The withdrawal attempt came after South Africa was censured by the court for failing to arrest Omar al-Bashir, then president of Sudan, when he visited the country in 2015 to attend an African Union summit. Al-Bashir was wanted by the ICC on genocide charges.

Ramaphosa announced in April that his country was again leaving the ICC. However, the ANC quickly clarified that South Africa had rescinded its notice of withdrawal and didn't plan on trying to leave the court.

Furthermore, even if South Africa "successfully leaves the Rome Statute system tomorrow or in the future, it's duty [to arrest Putin] will still apply," said international criminal lawyer Angela Mudukuti, who has previously worked at the ICC.

"That's because at the time at which the arrest warrant for Putin was issued, South Africa was a signatory to the Rome Statute and still is. So as long as that's the case, they cannot retrospectively go back and undo that," she told DW.

On top of this, if a member wishes to withdraw, it has to give 12 months notice.

Loophole in Rome Statute?

South Africa has indicated that it is seeking a legal loophole that would enable the country to suspend its obligation to arrest Putin without violating the Rome Statute.

Analysts take this to mean that South Africa wants to try to use Article 98 of the statute to argue that they can't arrest Putin unless Russia waives his immunity, something it is unlikely to do.

However, international lawyer Angela Mudukuti believes that won't work either.

"It's a very, very complicated and long discussion that has lawyers sort of spinning in circles around themselves," she said. But the "simple answer," she explained, is that Article 98 says immunities would have to be waived for someone to be arrested.

"But for immunities to be waived, they have to exist. And my position on this is that there is no immunity in this instance," said Mudukuti, adding that this aligns with an ICC appeals judgement on the matter.

Political scientist Dirk Kotze agrees: "The Rome Statute says no form of immunity is possible for a sitting president or head of state. It simply does not exist. Common international law does provide for presidential immunity under normal circumstances. But the ICC and the Rome Statute specifically excludes any form of immunity."

Taking it to the courts

The Ramaphosa government has also said it will explore if domestic laws can be changed to get it out of its diplomatic dilemma.

According to Hannah Woolaver, a law professor at the University of Cape Town, South Africa's Diplomatic Immunities and Privileges Act may allow the government to grant Putin immunity.

"It may be possible to accord Putin immunity for the purposes of the BRICS Summit, or even longer," she wrote in a blog post for the European Journal of International Law. But, she added, "domestic law cannot justify non-compliance with international duties."

To try to stay the government's hand, the opposition Democratic Alliance (DA) party launched a court application this week to make sure the government detains Putin if he comes to South Africa.

The reason they did this, DA shadow minister of justice Glynnis Breytenbach told DW TV, is "so there can be no ambiguity what our obligations are."

This seems to leave two options open to the Ramaphosa government if Putin turns up (which is itself a matter for debate): either arrest the sitting president of a nuclear power or further strain South Africa's relations with the West because of its perceived Russian bias.

"This is an incredibly tricky position that the country has found itself in," said Ziyanda Stuurman, a senior analyst for Africa with the Eurasia Group, a political risk consultancy.

"You are really seeing a country grapple in real time with these very, very difficult geopolitical choices to be made and and finding themselves in quite the pickle."

Edited by: Andreas Illmer