BRICS Summit And ICC Warrant Towards Putin – Evaluation

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 relating to Russian President Vladimir Putin’s participation within the occasion have been put to relaxation. Russian authorities confirmed that President Putin shall take part within the high-profile occasion in a digital mode, whereas his Minister of International Affairs Sergei Lavrov will attend in particular person.1 South Africa, as Chair of the BRICS, had determined to go forward with internet hosting the Summit meeting2 amidst controversy within the wake of Worldwide Legal Court docket (ICC) arrest warrant issued towards Putin in March 2023.3 

On condition that South Africa is a signatory and ratifier of the Rome Statute, ICC anticipated the warrant to be executed when Putin attended the assembly. Putin has been accused of being liable for illegal deportation and switch of kids from the battleground in Ukraine to the Russian Federation.4 Nonetheless, the arrest of the chief of a strong BRICS member nation in South Africa would have been a diplomatic catastrophe.

South Africa was considering extending sovereign immunity to a Head of State as per worldwide conference and never go forward with arresting President Putin. However this might have meant going towards the ICC obligations and defaulting on a world statutory dedication.  The confusion nonetheless ended with the announcement of the Russian choice, and the Summit will probably be organised as per its schedule in Johannesburg.

South Africa and ICC

This was not the primary event that a world summit in South Africa was beneath scanner as a consequence of dilemmas and repercussions associated to her membership of the ICC. South Africa confronted the same scenario in 2015, when Omar Al-Bashir, the erstwhile President of Sudan attended the African Union (AU) Summit assembly within the nation.5 The ICC had issued an arrest warrant towards Bashir for acts of crime towards humanity, battle crimes, and genocide dedicated in Darfur, Sudan between 2003 and 2008. South Africa nonetheless didn’t execute the warrant citing Bashir’s sovereign immunity. 

It should be famous that Sudan just isn’t a celebration to the Rome Statute however was acquired within the jurisdiction of the ICC by a referral by the United Nations Safety Council (UNSC) beneath Article 13(b) of the Statute for investigating and making an attempt solely the crimes and atrocities dedicated in Darfur beneath 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 additionally concluded that by agreeing to host AU Summit assembly, South Africa couldn’t mechanically assign immunity to President Bashir. However, the detrimental statement by the Chamber didn’t result in the reference of South African non-compliance to the Meeting of State Events (ASP) to the Rome Statute or the UN Safety Council (UNSC) for additional motion.6

Had the case been referred to ASP, the nation may have confronted additional referral to the Worldwide Court docket of Justice (ICJ), whereas in case of UNSC, the Russian veto would have nullified any motion. There are not any punitive provisions within the Rome Statue for a state failing to cooperate and execute its orders. Nonetheless, if referred to the ICJ or UNSC, the nations in query might face binding obligations failing which they shall be liable to UN actions beneath Chapter VI or VII relying on the severity of the case.  

The ICC has been institutionalised as a complementary Court docket which is meant to behave if the nationwide administration and courts of a rustic—the place a battle crime, crime towards humanity, or genocide has been dedicated, or to which the perpetrators belong to, fail to behave in prosecuting and punishing them. 

South African courts had taken be aware of the non-compliance and concluded that South Africa defaulted by not arresting Bashir.7 The Pre-Trial Chamber II appeared happy by the proceedings within the South African courts and given the document of earlier referrals to ASP or UNSC didn’t see any profit in escalating the case for additional motion.8 However the Chamber would have been beneath immense stress if it repeated the identical in case of South Africa failing to arrest Putin. 

As South Africa is a member of each ICC and BRICS, the nation typically finds herself divided between the 2. It was reported that the Russians insisted for the assembly to be offline with bodily presence of all of the BRICS leaders,9 whereas South Africa was making an attempt exhausting to discover a center path which resulted within the present Russian choice. The Russian President’s choice to not attend the BRICS Summit bodily subsequently rescued each South Africa and the ICC from a diplomatic quagmire.

ICC and Geopolitics

The Rome Statute is seen as politicising the prosecution course of with the inclusion of provisions of referral of even non-state members by the UNSC. One other provision of the Court docket permits it to attempt perpetrators from a non-party state with out her consent.10 Such provisions are considered as authorized aggression within the conventional sovereign jurisdictions, by BRICS nations like Russia. 

Since Russia possesses veto within the UNSC, the ICC Prosecutor took up the Ukrainian case by way of one other route. Ukraine, by two separate declarations, accepted the Court docket’s jurisdiction for the crimes dedicated on its territory from 21 February 2013 onwards. The investigation of the latest scenario in Ukraine was initiated by the pinnacle of the Workplace of the Prosecutor on the ICC. Lithuania, a celebration to Rome Statute and member of NATO, referred the alleged crimes by Putin to the ICC. A complete of 43 State events to the Court docket, particularly EU members, backed the referral of the Ukrainian scenario for investigation to place diplomatic stress on Putin.11 This put South Africa, one of many endorsers of the thought of the ICC, in a troublesome spot, a lot in order that it severely contemplated pulling out of the Rome Statute. The nation determined to not go for the intense step solely not too long ago.12

The South African scenario highlights the complexities of the functioning of worldwide system. Being a outstanding economic system and a center energy from Africa, the nation has assumed a bigger function of supporting peace and order on the continent. For this, it has aligned and cooperated with regional or worldwide our bodies that promise to deliver a semblance of peace and remove impunity from the continent. South Africa signed the Rome Statute in one in every of its idealist moments that had emerged because of the impunity prevalent primarily in Africa and Japanese Europe within the early Nineties. 

South Africa and different nations who joined within the Court docket prioritised the necessity to deliver to justice the perpetrators of violence over the universally accepted precept of nationwide sovereignty in sure instances. For the signatories of the Rome Statue, this was the value to be paid for eliminating impunity and creating a way of justice in worldwide society. Nonetheless, a number of main powers and European nations weren’t on the identical web page on this level. The US, China, Russia and India have since then saved out of the Rome Statute for related causes. The Court docket has additionally been accused of double requirements and Eurocentrism. All of the 31 instances which have been confirmed and listed within the court docket are from Africa.13

The controversy relating to Putin’s participation within the BRICS Summit in Johannesburg because of the ICC arrest warrant highlights the geopolitical overtones and inadequacies of the ICC within the modern world. BRICS is likely one of the most vital worldwide groupings representing round 42 per cent of humanity and contributing greater than 1 / 4 of the worldwide GDP.14 The case of warrant towards Sudan’s Bashir was technically the identical however substantively and politically very completely different from that of Putin. 

Arresting one of many heads of BRICS states with one of many strongest militaries possessing nuclear weapons and a veto within the UNSC would have led to far larger penalties as towards the Bashir case. South African President Cyril Ramaphosa said in a doc submitted to the court docket that “Russia has made it clear that arresting its sitting President can be a declaration of battle.”15 The difficulty brought about diplomatic discomfort between the 2 nations, which now stands resolved because of the understanding proven by each the perimeters.

Wanting into the Future

The set of occasions spotlight a world in flux and the tight rope stroll by center powers like South Africa. Brazil, one other center energy and get together to the Rome Statute, could also be seen strolling the identical tight rope throughout its presidency of BRICS. Due to this fact, the Rome Statute has the potential to create diplomatic points and geopolitical discord amongst nations. Many nations see the ICC as an agenda which isn’t in sync with situations of the modern world. The get together states both must press for amendments within the Statute to keep away from such conditions in future or be able to see the ICC decrees being violated and turning into ineffective as a consequence of geopolitical interplays. The positions taken by BRICS nations throughout the deliberations earlier than signing and enforcement of the Rome Statute might information such amendments.

Views expressed are of the creator and don’t essentially replicate the views of the Manohar Parrikar IDSA or of the Authorities of India.

Concerning the creator: Dr Saurabh Misra is Affiliate Professor at Amity Institute of Defence and Strategic Research, Noida.

Supply: This text was revealed by Manohar Parrikar IDSA

  • 1.Putin Will Not Attend BRICS Summit – South African PresidencyBBC Information, 19 July 2023.
  • 2.South Africa to Host BRICS Summit Regardless of Putin Arrest WarrantReuters, 29 June 2023.
  • 3.Scenario in Ukraine: ICC Judges Problem Arrest Warrants towards Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, Worldwide Legal Court docket, 17 March 2023.
  • 4.The crime is congnisable beneath Articles 8(2)(a)(vii) and eight(2)(b)(viii) of the Rome Statute.
  • 5.Allan Ngari, The Actual Drawback behind South Africa’s Refusal to Arrest al-Bashir, Institute for Safety Research, 10 July 2017.
  • 6.Al-Bashir Case: ICC Pre-Trial Chamber II Decides To not Refer South Africa’s Non-cooperation to the ASP or the UNSC, Worldwide Legal Court docket, 6 July 2017.
  • 7.Ibid.
  • 8.There was no punitive motion after the referrals by the ICC Chambers until date.
  • 9.Lizeka Tandwa, Give us per week, Mashatile Says on Query of Putin’s BRICS AttendanceMail & Guardian, 12 July 2023.
  • 10.Workplace of the Prosecutor, Worldwide Legal Court docket.
  • 11.Ukraine, Worldwide Legal Court docket.
  • 12.South Africa’s President and ANC Sow Confusion over Leaving ICCThe Guardian, 25 April 2023.
  • 13.31 Instances, Worldwide Legal Court docket.
  • 14.BRICS Funding Report 2023, UNCTAD, p. 5.
  • 15.South Africa Says Arresting Putin Would Be ‘Declaration of Warfare’Al Jazeera, 18 July 2023.