South Africa has invited Vladimir Putin to the BRICS summit, but an international arrest warrant has been issued for the Russian president. So South Africa would have to arrest him as soon as he enters the country.

South African Foreign Minister Naledi Pandor once again confirmed the invitation to Russian President Vladimir Putin to attend the BRICS Summit in Johannesburg in August. However, the International Criminal Court (ICC) has accused Putin of deporting Ukrainian children from Russian-occupied Ukraine and has issued an arrest warrant against him for this and other alleged war crimes.

South Africa is one of the signatories to the founding document of the International Court of Justice, the Rome Statute, and is therefore obliged to arrest Putin and extradite him to The Hague if he enters the country. Putin’s possible participation in the summit has been the subject of heated debate since the arrest warrant was issued in March. President Cyril Ramaphosa’s government is now desperately looking for ways to avoid a diplomatic scandal.

Moving to another venue?

During a two-day planning meeting of BRICS foreign ministers this week, Foreign Minister Pandor stressed that the summit would take place in South Africa. The media and other observers speculated that the Ramaphosa government might consider moving the summit to another BRICS country. Of the five BRICS member countries, only Brazil and South Africa have signed the Rome Statute. China, India and Russia have not done so.

A senior South African government official was quoted by Reuters as saying that one way out of the diplomatic quandary would be to ask the leader of the last BRICS summit, China, to host the summit.

Former South African President Thabo Mbeki also stressed the likelihood of the summit taking place in South Africa. “Due to our legal obligations, we would have to arrest President Putin, but we cannot do that,” Mbeki said in a radio interview with a Johannesburg station late last month.

Putin disinvited?

Another idea is making the rounds: the summit could be held online, as it was during the past three years of the pandemic. But there are also voices that advocate simply uninviting Putin. “The most obvious solution for our government would be to withdraw the invitation,” said Glynnis Breytenbach MP of the Democratic Alliance, the leading opposition party.

But it’s not that simple, disagrees Dirk Kotze, professor of political science at the University of South Africa in Pretoria. After all, this is not a bilateral event like a state visit by the Russian President to South Africa. “South Africa is acting here in its role as the rotating chairman of the BRICS countries, it’s a BRICS event,” he makes clear. “So the BRICS group must decide together whether to uninvite President Putin or change the format of the summit.”

Withdraw from the ICC or not?

South Africa has long been critical of the ICC, and the arrest warrant for Putin reignited debate within the ruling ANC party over membership of the Court. But the option of leaving the ICC to circumvent the Putin dilemma is off the table, according to analysts.

In 2016, South Africa formally announced its withdrawal from the ICC, but the South African Supreme Court later ruled that withdrawal unconstitutional. The attempt to leave followed a reprimand from the ICC for South Africa’s failure to arrest then-Sudanese President Omar al-Bashir when he was in the country in 2015 to attend an African Union summit. Al-Bashir was wanted by the ICC for genocide.

In April, President Ramaphosa again announced his intention to leave the ICC. This time, however, the ANC was quick to clarify that South Africa had withdrawn its declaration of withdrawal and had no plans to leave the court.

Even if South Africa were to “successfully exit the Rome Status system, now or in the future, its obligation (to arrest Putin) would still exist,” said Angela Mudukuti, an international criminal lawyer who formerly worked at the ICC. “Because at the time the arrest warrant was issued for Putin, South Africa was and remains a signatory to the Rome Statute. As long as that’s the case, the country can’t go and undo that,” she told DW.

In addition, members who wish to leave must give twelve months’ notice to do so.

Does the Rome Statute offer a loophole?

South Africa has indicated it is looking for a legal loophole that would allow the obligation to arrest Putin to be suspended without violating the Rome Statute. According to observers, South Africa could possibly use Article 98 of the statute to argue that Putin can only be arrested if Russia waives his immunity – which is unlikely to happen.

And it won’t work either, as international criminal defense attorney Angela Mudukuti argues. “This is a very, very complicated and lengthy discussion, with the lawyers basically turning around themselves.” The abridged “simple version” according to Mudukuti: Article 98 states that an immunity must be waived in order for someone to be arrested . “But for immunities to be lifted, they must first exist. And I think there is no immunity here,” she explains, noting that this interpretation would be confirmed by a judgment of the ICC Appeals Chamber.

Political scientist Dirk Kotze is of the same opinion. “As the Rome Statute states, there is no form of immunity for an incumbent president or head of state. It simply doesn’t exist. While general international law provides for presidential immunity under normal circumstances, the ICC and the Rome Statute do not – they expressly exclude any form of immunity.”

The way to court

The Ramaphosa government also wants to examine whether there is a possibility of changing national laws and thus finding a way out of this diplomatic dilemma. According to Hannah Woolaver, a law professor at the University of Cape Town, South Africa’s Diplomatic Immunities and Privileges Act could allow governments to grant immunity to Putin. “Possibly Putin could be granted immunity for the duration of the BRICS summit or longer,” she writes in a blog entry for the European Journal of International Law. But she also adds: “Domestic law cannot justify non-compliance with international obligations.”

In a bid to force the government to act and ensure it detains Putin when he comes to South Africa, the opposition Democratic Alliance (DA) party submitted a request to the court this week. This is to ensure that “there is no doubt about what our commitments are,” says opposition politician Glynnis Breytenbach.

The Ramaphosa government thus appears to have only two options when Putin comes to the BRICS summit (which remains a question): either arrest the incumbent president of a nuclear power, or further strain South Africa’s relations with the western world by appearing to side with Russia .

“The country is in an extraordinarily sensitive situation,” said Ziyanda Stuurman, senior analyst for Africa at Eurasia Group, a political risk consultancy. “It has to deal with extremely difficult geopolitical issues in real time and is in a real bind.”