South African government has granted diplomatic immunity to all international participants, including Russian President Vladimir Putin and other Russian officials, at BRICS-related events to be held in the country, local media reported.
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 May2 2, states that Mr. 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 Mr. 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.
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A warrant for Mr. 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 Mr. Putin when he is in the country. Despite this, South Africa, as the current chair of the BRICS alliance, has officially invited Mr. 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. Mr. 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 June 1 and June 2.
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Opposition
Meanwhile, Opposition leader John Steenhuisen filed an application seeking an urgent order to the government to arrest Mr. Putin if the ICC requests South Africa to arrest him if he sets foot in the country, the Daily Maverick reported.
Mr. Steenhuisen, has requested a three-part order, which seeks to confirm that the other respondents to his application are obliged to ensure that Mr. Putin is arrested if he enters South Africa.
Mr. Steenhuisen seeks an order confirming that the director-general of justice, on receipt of a request from the ICC to arrest and surrender Mr. 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.
Legal Loophole
The South African government had indicated that it is seeking a legal loophole that would allow it to host Mr. 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 Mr. Putin and Russia] unless the Court can first obtain the cooperation of that third State for the waiver of the immunity."
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On the face of it, this article appears to suggest that the ICC could not ask Pretoria to arrest and hand over Mr. Putin unless Russia agreed to waive his immunity from prosecution – which Moscow would obviously not give.
South Africa tried to invoke Article 98 when the ICC asked it to arrest and surrender then – Sudanese President Omar al-Bashir. But the ICC ruled then 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 Mr. Putin, was not referred to the ICC by the UN Security Council. It was taken up by the ICC prosecutor. 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 – but without any qualification like Article 98,” the Daily Maverick reported.
