By Saurabh Misra
The clouds of confusion on the BRICS Summit to be held in Johannesburg, South Africa from 22–24 August 2023 have cleared as speculations regarding Russian President Vladimir Putin’s participation in the event have been put to rest. Russian authorities confirmed that President Putin shall participate in the high-profile event in a virtual mode, while his Minister of Foreign Affairs Sergei Lavrov will attend in person.1 South Africa, as Chair of the BRICS, had decided to go ahead with hosting the Summit meeting2 amidst controversy in the wake of International Criminal Court (ICC) arrest warrant issued against Putin in March 2023.3
Given that South Africa is a signatory and ratifier of the Rome Statute, ICC expected the warrant to be executed when Putin attended the meeting. Putin has been accused of being responsible for unlawful deportation and transfer of children from the battleground in Ukraine to the Russian Federation.4 However, the arrest of the leader of a powerful BRICS member country in South Africa would have been a diplomatic disaster.
South Africa was contemplating extending sovereign immunity to a Head of State as per international convention and not go ahead with arresting President Putin. But this would have meant going against the ICC obligations and defaulting on an international statutory commitment. The confusion however ended with the announcement of the Russian decision, and the Summit will be organised as per its schedule in Johannesburg.
South Africa and ICC
This was not the first occasion that an international summit in South Africa was under scanner due to dilemmas and repercussions related to her membership of the ICC. South Africa faced a similar situation in 2015, when Omar Al-Bashir, the erstwhile President of Sudan attended the African Union (AU) Summit meeting in the country.5 The ICC had issued an arrest warrant against Bashir for acts of crime against humanity, war crimes, and genocide committed in Darfur, Sudan between 2003 and 2008. South Africa however did not execute the warrant citing Bashir’s sovereign immunity.
It must be noted that Sudan is not a party to the Rome Statute but was acquired in the jurisdiction of the ICC through a referral by the United Nations Security Council (UNSC) under Article 13(b) of the Statute for investigating and trying only the crimes and atrocities committed in Darfur under President Bashir.
In July 2017, the Pre-Trial Chamber II of the ICC concluded that South Africa violated the Rome Statute by not arresting Bashir. It also concluded that by agreeing to host AU Summit meeting, South Africa could not automatically assign immunity to President Bashir. Nevertheless, the negative observation by the Chamber did not lead to the reference of South African non-compliance to the Assembly of State Parties (ASP) to the Rome Statute or the UN Security Council (UNSC) for further action.6
Had the case been referred to ASP, the country could have faced further referral to the International Court of Justice (ICJ), while in case of UNSC, the Russian veto would have nullified any action. There are no punitive provisions in the Rome Statue for a state failing to cooperate and execute its orders. However, if referred to the ICJ or UNSC, the countries in question may face binding obligations failing which they shall be liable to UN actions under Chapter VI or VII depending on the severity of the case.
The ICC has been institutionalised as a complementary Court which is supposed to act if the national administration and courts of a country—where a war crime, crime against humanity, or genocide has been committed, or to which the perpetrators belong to, fail to act in prosecuting and punishing them.
South African courts had taken note of the non-compliance and concluded that South Africa defaulted by not arresting Bashir.7 The Pre-Trial Chamber II seemed satisfied by the proceedings in the South African courts and given the record of previous referrals to ASP or UNSC did not see any benefit in escalating the case for further action.8 But the Chamber would have been under immense pressure if it repeated the same in case of South Africa failing to arrest Putin.
As South Africa is a member of both ICC and BRICS, the country sometimes finds herself divided between the two. It was reported that the Russians insisted for the meeting to be offline with physical presence of all the BRICS leaders,9 while South Africa was trying hard to find a middle path which resulted in the current Russian decision. The Russian President’s decision not to attend the BRICS Summit physically therefore rescued both South Africa and the ICC from a diplomatic quagmire.
ICC and Geopolitics
The Rome Statute is seen as politicising the prosecution process with the inclusion of provisions of referral of even non-state members by the UNSC. Another provision of the Court allows it to try perpetrators from a non-party state without her consent.10 Such provisions are viewed as legal aggression in the traditional sovereign jurisdictions, by BRICS countries like Russia.
Since Russia possesses veto in the UNSC, the ICC Prosecutor took up the Ukrainian case via another route. Ukraine, through two separate declarations, accepted the Court’s jurisdiction for the crimes committed on its territory from 21 February 2013 onwards. The investigation of the recent situation in Ukraine was initiated by the head of the Office of the Prosecutor at the ICC. Lithuania, a party to Rome Statute and member of NATO, referred the alleged crimes by Putin to the ICC. A total of 43 State parties to the Court, especially EU members, backed the referral of the Ukrainian situation for investigation to put diplomatic pressure on Putin.11 This put South Africa, one of the endorsers of the idea of the ICC, in a difficult spot, so much so that it seriously contemplated pulling out of the Rome Statute. The country decided not to go for the extreme step only recently.12
The South African situation highlights the complexities of the functioning of international system. Being a prominent economy and a middle power from Africa, the country has assumed a larger role of supporting peace and order on the continent. For this, it has aligned and cooperated with regional or international bodies that promise to bring a semblance of peace and eliminate impunity from the continent. South Africa signed the Rome Statute in one of its idealist moments that had emerged due to the impunity prevalent primarily in Africa and Eastern Europe in the early 1990s.
South Africa and other countries who joined in the Court prioritised the need to bring to justice the perpetrators of violence over the universally accepted principle of national sovereignty in certain cases. For the signatories of the Rome Statue, this was the price to be paid for eliminating impunity and creating a sense of justice in international society. However, several major powers and European countries were not on the same page on this point. The US, China, Russia and India have since then kept out of the Rome Statute for similar reasons. The Court has also been accused of double standards and Eurocentrism. All the 31 cases that have been confirmed and listed in the court are from Africa.13
The controversy regarding Putin’s participation in the BRICS Summit in Johannesburg due to the ICC arrest warrant highlights the geopolitical overtones and inadequacies of the ICC in the contemporary world. BRICS is one of the most important international groupings representing around 42 per cent of humanity and contributing more than a quarter of the global GDP.14 The case of warrant against Sudan’s Bashir was technically the same but substantively and politically very different from that of Putin.
Arresting one of the heads of BRICS states with one of the strongest militaries possessing nuclear weapons and a veto in the UNSC would have led to far greater consequences as against the Bashir case. South African President Cyril Ramaphosa stated in a document submitted to the court that “Russia has made it clear that arresting its sitting President would be a declaration of war.”15 The issue caused diplomatic discomfort between the two countries, which now stands resolved due to the understanding shown by both the sides.
Looking into the Future
The set of events highlight a world in flux and the tight rope walk by middle powers like South Africa. Brazil, another middle power and party to the Rome Statute, may be seen walking the same tight rope during its presidency of BRICS. Therefore, the Rome Statute has the potential to create diplomatic issues and geopolitical discord among countries. Many countries see the ICC as an agenda which is not in sync with conditions of the contemporary world. The party states either have to press for amendments in the Statute to avoid such situations in future or be ready to see the ICC decrees being violated and becoming ineffective due to geopolitical interplays. The positions taken by BRICS countries during the deliberations before signing and enforcement of the Rome Statute may guide such amendments.
Views expressed are of the author and do not necessarily reflect the views of the Manohar Parrikar IDSA or of the Government of India.
About the author: Dr Saurabh Misra is Associate Professor at Amity Institute of Defence and Strategic Studies, Noida.
Source: This article was published by Manohar Parrikar IDSA
- 1.“Putin Will Not Attend BRICS Summit – South African Presidency”, BBC News, 19 July 2023.
- 2.“South Africa to Host BRICS Summit Despite Putin Arrest Warrant”, Reuters, 29 June 2023.
- 3.“Situation in Ukraine: ICC Judges Issue Arrest Warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova”, International Criminal Court, 17 March 2023.
- 4.The crime is congnisable under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute.
- 5.Allan Ngari, “The Real Problem behind South Africa’s Refusal to Arrest al-Bashir”, Institute for Security Studies, 10 July 2017.
- 6.“Al-Bashir Case: ICC Pre-Trial Chamber II Decides Not to Refer South Africa’s Non-cooperation to the ASP or the UNSC”, International Criminal Court, 6 July 2017.
- 8.There has been no punitive action after the referrals by the ICC Chambers till date.
- 9.Lizeka Tandwa, “Give us a week, Mashatile Says on Question of Putin’s BRICS Attendance”, Mail & Guardian, 12 July 2023.
- 10.“Office of the Prosecutor”, International Criminal Court.
- 11.“Ukraine”, International Criminal Court.
- 12.“South Africa’s President and ANC Sow Confusion over Leaving ICC”, The Guardian, 25 April 2023.
- 13.“31 Cases”, International Criminal Court.
- 14.“BRICS Investment Report 2023”, UNCTAD, p. 5.
- 15.“South Africa Says Arresting Putin Would Be ‘Declaration of War’”, Al Jazeera, 18 July 2023.