The South African government has granted diplomatic immunity to all officials involved in the BRICS foreign ministers’ meeting and summit. International Relations and Cooperation Minister Naledi Pandor's notice for the Diplomatic Immunity and Privileges Act was issued on 19 May and gazetted on Monday. Section 6(1)(a) of the act grants immunity from personal arrest or detention, seizure of their personal baggage, and immunity from legal process of every kind. A warrant for Putin's arrest was issued by the International Criminal Court in March, and since South Africa is a member of the formation, it is obliged to arrest Putin when he is in the country. Despite this, South Africa has officially invited Putin to the summit in August.
An interministerial committee has been appointed to consider South Africa's position in relation to the ICC, chaired by Deputy President Paul Mashatile. The DA leader John Steenhuisen has filed an application to the Pretoria High Court seeking an urgent order to arrest Russian Foreign Minister Sergey Lavrov if the ICC requests South Africa to arrest him if he sets foot in the country. The application seeks a general declaratory order setting out the government’s obligations under the Rome Statute and the ICC Implementation Act, as well as an order confirming that the director-general of justice must forward the arrest warrant to a magistrate. The other respondents to the application are the President, the minister and director-general of Justice and Constitutional Development, the minister and director-general of International Relations and Cooperation, the minister and national commissioner of police and the Deputy President. The Constitutional Court has confirmed that in constitutional matters, courts are empowered to grant just and equitable remedies.
The South African government has indicated that it is seeking a legal loophole which would allow it to host Putin without violating the ICC Rome Statute. This loophole would be found in Article 98 of the Rome Statute, which states that the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person... of a third State, [in this case Putin and Russia] unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. South Africa tried to invoke Article 98 when the ICC asked it to arrest and surrender then Sudanese President Omar al-Bashir. The ICC ruled that because the UN Security Council had referred the Sudan situation to the ICC, Article 98 did not apply.
However, the Ukraine situation under which the ICC issued a warrant of arrest for Putin was not referred to the ICC by the UN Security Council. South Africa believes this could offer it a way out of its dilemma over Putin, but Atilla Kisla, international justice cluster lead at the Southern Africa Litigation Centre, has pointed out that Article 98 would not remove South Africa’s obligation to arrest and surrender Putin if the ICC asked him to. It would be up to the ICC to decide whether to proceed with a request to South Africa to arrest and surrender Putin. 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.
