South Africa scrambles to avert Putin arrest headache

South Africa has a 'Putin headache' that some officials are hoping to solve with a Zoom session.

This is because South Africa will host the next summit of the BRICS (Brazil, Russia, India, China, South Africa) grouping in August, to which Russian leader Vladimir Putin has been invited, as is customary, and he has accepted.

However, an international red notice has been issued by Interpol, following a war crimes indictment against Putin at the International Criminal Court (ICC) for the mass deportation of Ukrainian children from the occupied territories of Ukraine to Russia. 

Read: Will Vladimir Putin really ever be arrested?

As a signatory to the Rome Convention that empowers the ICC, South Africa is obliged to arrest anyone named, as Putin was.

But the ruling African National Congress (ANC) and its hard-left allies in the SA Communist Party and the Congress of SA Trade Unions remain sentimental about Russia because of the Soviet Union's help in opposing the racist system of oppression known as apartheid. 

Withdraw from ICC

As a result, last week SA President Cyril Ramaphosa first said that SA would withdraw from the ICC, meaning that Putin would be welcome to come to SA in August without fear of arrest, and then changed his tune within 24 hours, saying that this communication was the result of an internal 'mistake' within the ruling party.

Fikile Mbalula, ANC secretary general and chief spokesman for the ruling party, said the Red Notice issue was 'irrelevant' because international leaders enjoy 'immunity' from arrest or prosecution, which international lawyers say is an informal arrangement rather than a reflection of international law in the case of war crimes.

Given that the ruling party would therefore ignore the ICC's arrest warrant, as far as the ANC was concerned, Putin could "come here any time".

South Africa already has a history of ignoring international arrest warrants, dating back to its refusal to arrest former Sudanese dictator Omar al-Bashir in 2015 when he visited the country for an African Union summit. 

Read: ICC judges issue arrest warrant for Putin over Ukraine 

Instead of arresting the wanted Sudanese strongman, S African authorities secretly spirited him out of the country as local media picked up on the issue, asking why he had not yet been arrested on S African soil.

The ANC also said at the time, in offering its excuse for not arresting al-Bashir, that heads of state have complete immunity from arrest or prosecution while in office.

But this position is far from set in stone and legal clarity when it comes to war crimes and acts of genocide, which the Ukrainians say the mass abduction of their children in Russian-occupied territory amounts to.

The Rome Statute of the International Criminal Court (ICC) is the treaty that establishes the Court and gives it international authority.

It was adopted at a conference in Rome, Italy, in July 1998 and entered into force on 1 July 2002. As of November 2019, 123 states are parties to the Statute.

As a signatory, South Africa has an obligation to arrest anyone indicted by the ICC on the basis of an international arrest warrant, which is also reflected as an obligation in domestic law - so the South African authorities would be breaking their own laws if they failed to arrest him.

While it is widely accepted that heads of state enjoy functional immunity (for the acts of their administrations and officials) as well as personal immunity, this does not necessarily apply to international war crimes and genocide allegations, and there is no clear case law either way.

The leader of South Africa's opposition-led Western Cape region, Democratic Party Premier Alan Winde, has also promised that if Putin were to venture into South Africa for the BRICS summit, he would "certainly" be arrested the moment he sets foot in the province - a technical possibility, even though the upcoming BRICS summit is scheduled to take place in another province, Gauteng. 

Unprovoked invasion

Winde said he would use local law enforcement for the job, in conjunction with the ICC and Interpol, to get around the fact that the national police would almost certainly not respond to an order to arrest Putin.

Beyond these elements, South Africa's stubborn refusal to criticise the Kremlin for its unprovoked invasion of Ukraine last March has jeopardised a recently negotiated $8.5 billion soft loan and donor assistance programme to help the country with its ongoing power shortages, which are set to last for years.

The 'just energy transition' away from fossil fuels and towards renewables such as wind, solar and hydro power is not possible without this aid package from Western governments.

Its financial, technical and political support is vital, but it is much resisted because of internal opposition within the ruling alliance to the planned phase-out of coal, which is still strongly supported by some elements up to and including the Minister of Minerals and Energy. 

Read: ICC: Will South Africa stand with Putin?

As a result, the multi-billion dollar 'just energy transition' aid package has been described as an 'imperialist imposition' by some of the more vocal voices on the far left of the ruling alliance.

Worse still, perhaps, is that South Africa looks set to lose out on preferential treatment for imported goods to the United States under the African Growth and Opportunity Act (AGOA).

This American law requires the certification of qualifying states, and South Africa is now directly jeopardising this status by alienating a growing number of US lawmakers through its ongoing outreach to Russia, such as Ramaphosa's personal invitation to Putin to attend the upcoming BRICS summit.

AGOA provides eligible sub-Saharan African countries with duty-free access to the US market for over 1,800 products, including textile and non-textile goods, in addition to over 5,000 products eligible for duty-free entry into the US under the Generalised System of Preferences.

AGOA was recently reauthorised by US lawmakers to run until 30 September 2025.

But for a variety of reasons, there have been rumblings in diplomatic and trade circles since as far back as 2014 that South Africa would lose its preferential AGOA status - a certain blow to exports due to increased tariff costs - which was officially acknowledged at the time.

South Africa's repeated failure to condemn the Kremlin for its war in Ukraine has worsened its position in Washington in recent months.

The stakes are high if increasingly unhappy US lawmakers pull the AGOA rug out from under South Africa.

The main products S Africa exports to the US are platinum ($6.98bn), motor vehicles ($798m) and gold ($687m), with the total value of this SA-US trade growing at a 25-year average annual rate of 6.9% to $14bn in 2021.

In short, South Africa cannot afford to lose AGOA and the various other international aid and support packages it currently enjoys.

That is why President Ramaphosa sent an emergency delegation to Washington last week to argue that, despite conflicting statements about whether or not President Putin should be arrested if he comes to S Africa - the ambiguity driving negative sentiment about what is perceived in the US as blatant 'Putin support' - US lawmakers should still allow S Africa to retain its current AGOA status.

While there was no immediate word on the outcome of that mission, Nato's newest member, Finland, had its president on an official visit to South Africa last week, where warm public comments - Finland also boasts a proud history of opposing apartheid - were countered by rather different communications behind closed doors.

According to diplomats who observed the proceedings, the Finnish leader made it clear that South Africa "cannot have its cake and eat it too - the Ramaphosa government cannot be with us in the West and be our friends, and also with Russia, at the moment and after the invasion of Ukraine.

Economically, the choice between Western powers in general and Russia is a "no-brainer", as Russia has relatively little trade with South Africa: just $820 million, according to 2021 figures.

South Africa's main imports from Russia are copper (32.0%), cereals (25.0%), fuel (12.2%) and fertiliser (11.0%), according to the International Trade Centre's 2022 figures.

In 2021, S Africa's exports to Russia were worth about $686 million, mainly manganese ore ($150 million), citrus fruits ($130 million) and motor vehicles ($91.9 million).

Since the mid-1990s, South Africa's trade with Russia has grown at an annual rate of 9.49% from a very low base of about $65m in 1995.

Even within the BRICS bloc, SA-China trade is much higher at $26bn, with SA-Russia trade accounting for just 2% of trade with all BRICS partners.

Given the economic and diplomatic stakes, and also last week's embarrassing flip-flop on whether or not South Africa is in the ICC, all against the backdrop of Putin's imminent attendance at the August BRICS summit and whether or not he will be arrested, President Ramaphosa has, in sporting terms, 'kicked for touch'.

Faced with an internal dispute along pro- and anti-Russian lines, as well as fierce diplomatic censure and other likely negative consequences of stinging proportions, the South African leader said an ANC committee would assess the correct position for his party, and by extension the country, on the ICC issue.

This apparent play for time was apparently necessitated by the unexpectedly intense and harsh reaction to Ramaphosa's 'one foot on each side of the fence' stance on Putin's Russia.

A tired and uncharacteristically low energy Ramaphosa, in a marked departure from his usual upbeat demeanour, attempted to speak positively to visiting potential Finnish investors accompanying their leader last week - even as the lights went out, albeit briefly, as emergency power kicked in, but in a direct illustration of the scale and depth of the country's energy crisis.

Ramaphosa's somewhat lacklustre efforts to woo the Finns reflected the rock-and-a-hard place the South African leader now finds himself in, not just with the Finns but with most Western nations and almost all Nato allies, especially the Americans.

The solution: with much-needed multi-billion dollar trade, investment, aid and energy assistance packages at stake, the ANC has decided to propose a 'safer for all' option: instead of attending in person, it has been suggested up the diplomatic chain that it would be better for President Putin to attend virtually, say via Zoom.

There has not yet been a clear response from the Kremlin to this idea, which was raised last weekend.

But it will have to make a very difficult decision if the Russian leader decides to make a point by coming to South Africa in person, after the ANC assured him last week that it would be safe to visit and that there was "no way South Africa would ever arrest President Putin".