By Dr Noluthando Phungula
The International Criminal Court, of which South Africa is a full member, has issued warrants of arrest for Russia’s President Vladimir Putin and Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. An arrest warrant was issued by the tribunal for Putin and his co-accused on charges of allegedly committing war crimes in Russia’s ongoing invasion of Ukraine.
In laying these charges, the court "has focused its claims on the unlawful deportation of children from Ukraine to Russia." It has determined that it has reasonable grounds to believe Putin committed the criminal acts directly, as well as working with others. As expected, Russia has rejected the ICC’s move as “null and void”. The Kremlin has reiterated it does not recognise the court’s jurisdiction.
While the ICC has issued a warrant for Putin to be arrested, whether he will actually stand trial is highly unlikely. Among the weaknesses of the ICC is its inability to arrest suspects. Instead, the court may only exercise jurisdiction within its member countries and Russia is not a signatory. Based on this, the issuing of this warrant may well be construed as mere political gymnastics.
The case of double standards
The decision to issue an arrest warrant for Putin has cast a spotlight on the legitimacy of the ICC itself. This is not the first time the court has brought charges against a sitting head of state; in 2009, the court went after Omar Al-Bashir, the now former president of Sudan. As at 2018, 48% of the ICC’s investigations have been alleged serious crimes by Africans. The numbers suggest that the courts focus is rather disproportional, with a focus on the African continent. The prosecution of international crimes has obviously been directed at easy targets in non-western regions, while the atrocities committed by the main imperialist powers remain unattended.
It may well be that the ICC has a solid case, but the bigger question is why the Russian leader faces charges when so many war criminals among Western political leaders remain at large. A pertinent question must be asked: What differentiates the crimes committed by Putin in Ukraine to the crimes committed by George W Bush and Tony Blair in Iraq? Putin is accused of unlawfully deporting Ukrainian children to Russia.
In 1996, in an interview with former US secretary of state Madeleine Albright, evidence was presented that suggested US sanctions had led to the deaths of half a million Iraqi children. The pretence and hypocrisy could not be more blatant as the ICC issued an arrest warrant for Putin on the 20th anniversary of the beginning of the United States’ imperialist invasion of Iraq. Moreover, the US has been continually complicit in Israeli war crimes and crimes against humanity against Palestinians for decades.
The United States itself has adamantly refused to accept that its own misgivings should be accountable to any international standards and, as such, it has not recognised the jurisdictional authority of the ICC. Regardless of this, Joe Biden has still expressed his jubilance with the ICC’s decision to pursue Putin. Biden has supported the decision and stressed that the prosecution was justified, and reiterated that the ICC was relaying a strong point across the world.
The timing of the warrant
The timing of the warrant coincided with the final preparations of the International Parliamentary Conference under the theme, “Russia–Africa in a Multipolar World”, held on March 19 to 20 in Moscow.
The conference is the second of its kind devoted to strengthening cooperation between African and Russian parliamentarians. This meeting saw the presence of representatives from African countries, including heads of state. Putin reiterated Russia’s commitment to prioritise and cooperate with African countries. He further emphasised that Russia and African states stood against neo-colonial ideology imposed by foreign states. Interestingly, following the conference that reiterated Africa-Russia relations, Putin faces arrest if he sets foot in any of the 33 African states and any of the other 90 signatory states to the statute.
South Africa must be decisive
South Africa is hosting this year’s BRICS summit in August 2023, which is expected to be attended by all heads of state within the grouping, including Russia. This suggests that South Africa would be obliged to arrest Putin and hand him over if he sets foot on its soil. International Relations and Cooperation Minister Naledi Pandor has confirmed that South Africa has invited Putin to participate in the 15th BRICS summit that will take place in Durban in August. South Africa is obliged under Article 86 of the ICC statute and domestic law to cooperate fully by arresting Putin.
President Cyril Ramaphosa’s government has a tough decision to make on whether or not it arrests Putin should he honour the invitation.
The country has been faced with a similar dilemma before. In June 2015, South Africa found itself in a similar situation when the African Union summit awaited the presence of the Sudanese President Omar Al Bashir, who was facing an arrest warrant for genocide, war crimes and crimes against humanity. In terms of South Africa’s ICC obligations, the government was obliged to arrest and extradite him. However, then president Jacob Zuma did not order the arrest, citing immunity from prosecution for sitting heads of state under international law.
The country faced much criticism from the international community for its failure to make the arrest. The country attempted to withdraw from the Rome Statute soon after the controversy, but would later withdraw from the withdrawal. South Africa remains a member of the ICC.
Which way?
The question is: What decision will Ramaphosa’s government make? A key point to consider is the courts legitimacy. The country must be able to determine whether it is being used to further the West’s agenda. In this regard, should Putin arrive and not be arrested, the country will lose international credibility and would have to face the music with many of its international trade partners through preferential trade terms. A practical example is the impact SA’s decision regarding Putin would have on its exports to the US under the African Growth and Opportunity Act (Agoa). You will remember how the US has recently used Agoa as a sanction against Ethiopia, The Gambia and Mali.
The Covid-19 pandemic brought with it many opportunities, including flawless virtual attendance, and this could be an option for Putin. Alternatively, there is the option to send a delegation to the summit. On the other hand, throughout the years, South Africa has positioned itself as a serious player in global politics through its foreign policy, BRICS activism and memberships. Its BRICS membership has not been viewed in a good light by the former colonial masters. Therefore, the current saga will prove to be a big character test for the SADC regional power.
South Africa would need to consider its geopolitical standing within BRICS against its key trade partners, which are largely Western. Having maintained cordial relations with Russia for a long time, particularly because of the support given by Russia to liberation movements during apartheid, South Africa can be expected to approach this matter with caution. Moreover, the BRICS formation has further cemented relations among the various states in SADC and in Africa, thus cultivating fertile ground for an Africa that is pro-East.
* Dr Noluthando Phungula is from the Institute for Pan African Thought and Conversation at the University of Johannesburg.
** The views expressed do not necessarily reflect the views of Independent Media or IOL.