According to local media, the South African government has extended diplomatic immunity to all foreign attendees, including Russian President Vladamir Putin and other government representatives, during BRICS-related activities taking place in the nation.The immunities and privileges in terms of the United Nations Convention grant immunity from personal arrest or detention. A gazetted notice was issued by the International Relations and Cooperation Minister Naledi Pandor for the Diplomatic Immunity and Privileges Act to be granted to all international officials at BRICS-related events in the country, according to the Daily Maverick, a South African-based publication.
The notice, signed on May 19 and gazetted on Monday, states that Putin and his international counterparts will be granted immunities and privileges provided in terms of Section 6(1)(a) of the act.
A spokesperson for Pandor said the notice was “routine”, and such notices were issued every time there was a similar international meeting in South Africa.
The act states that this immunity is granted to officials and experts of the United Nations, any specialised agency or organisation, and representatives of any state participating in an international conference or meeting convened in South Africa.
Section 6(1)(a) of the act sets out that immunities “are specifically provided for in the Convention on the Privileges and Immunities of the United Nations, 1946, or the Convention on the Privileges and Immunities of the specialised agencies, 1947, as the case may be, in respect of the participation in conferences and meetings”.
“Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind,” the document reads.
A warrant for Putin’s arrest was issued by the International Criminal Court in The Hague 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, as the current chair of the BRICS alliance, has officially invited Putin to the summit in August.
The International Relations Department is also seeking a legal opinion on how to deal with the ICC’s arrest warrant. Putin’s possible attendance at BRICS has been a bone of contention since the warrant was issued.
It has now been confirmed that Russian Foreign Minister Sergey Lavrov will take part in the BRICS foreign ministers meeting in Cape Town on Thursday and Friday.
Meanwhile, Opposition leader John Steenhuisen filed an application seeking an urgent order to the government to arrest Putin if the ICC requests South Africa to arrest him if he sets foot in the country, the Daily Maverick reported.Steenhuisen seeks an order confirming that the director-general of justice, on receipt of a request from the ICC to arrest and surrender Putin, must forward the arrest warrant to a magistrate.
The other respondents are the President, the minister and the director-general of Justice and Constitutional Development, the minister and director-general of International Relations and Cooperation, the minister and the national commissioner of police and the Deputy President.
The South African government had indicated that it is seeking a legal loophole that would allow it to host Putin without violating the ICC Rome Statute. This loophole would be found in Article 98 of the Rome Statute.
While Article 27 of the Rome Statute stipulates that even sitting heads of state are not immune from prosecution by the ICC, Article 98 appears to provide an exception to this general rule.
Article 98(1) states, “The Court may not proceed with a request for surrender or assistance which would require the requested State [in this case South Africa] 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.”When the ICC requested that South Africa arrest and hand over then-Sudanese President Omar al-Bashir, South Africa attempted to use Article 98. However, the ICC determined that Article 98 did not apply because the UN Security Council had referred the Sudan matter to the ICC.
The UN Security Council did not refer the ICC to deal with the situation in Ukraine, which led to the ICC issuing a warrant for Putin’s arrest. The prosecutor for the ICC took it up.
According to the Daily Maverick, South Africa may face an even bigger challenge because of its own ICC Implementation Act, which explicitly states that sitting heads of state do not enjoy protection from prosecution – but without any caveats like Article 98.
