The Department of International Relations and Cooperation (Dirco) has declared the BRICS summit to be held in South Africa in August will be a protected event.

The department gazetted a declaration on Monday (29 May), recognising two meetings that will be covered by diplomatic immunity in terms of the Diplomatic Immunities and Privileges Act.

The first is the BRICS Ministerial Meeting to be held in Cape Town on 1 and 2 June 2023, and the second is the 15th BRICS Summit to be held in Johannesburg from 22 to 24 August 2023.

The latter event has become a highly controversial political hot potato for South Africa, as the event is expected to be attended by Russian President Vladimir Putin.

“It is hereby published for general information that the Minister of International Relations and Cooperation, in terms of section 6(2) of the Diplomatic Immunities and Privileges Act 2001, has recognised (the meetings),” the department said.

“In accordance with section 6(1)(a) of the said Act, the immunities and privileges to be accorded to the participants of (the meetings) are those provided for in the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of Specialised Agencies, as may be applicable and for their effective participation in the Ministerial Meeting and the Summit.”

While the United Nations Conventions apply the representatives and missions from the UN, South Africa’s Diplomatic Immunities and Privileges Act allows the department to extend the same privileges to specialised agencies and representatives of any state being hosted in international conventions within the republic.

Notably, the immunities and privileges granted in terms of the United Nations Convention grant immunity from personal arrest or detention.

According to the UN document:

“Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and Immunities:

(a) 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;

Putin’s planned presence at the conference has put South Africa in a tight spot, as the Russian president has a warrant out for his arrest issued by the International Criminal Court (ICC) for war crimes related to the invasion of Ukraine.

Under pressure to find a way out of the predicament, President Cyril Ramaphosa – speaking as president of the African National Congress – caused upset and confusion in April by announcing that the ruling party would push the government to withdraw from the ICC – a statement which was hastily backtracked.

As it stands, the country remains a signatory to the Rome Statutes and the ICC, and is therefore obligated to act on the court’s arrest warrants.

Even with the new declaration from Dirco, no immunities are given under the Rome Statutes.

Article 98 of the Statutes does have some degree of immunity, in that the ICC cannot force non-participating countries to arrest or surrender someone to the courts without explicit cooperation – however, this does not apply to South Africa as a member nation.

According to international law expert Dr Hannah Woolaver from the European Journal for International Law, South Africa has limited options, and the whole affair will be a huge test for international law.

Even if South Africa withdrew from the ICC as intended, the country would still be obligated to act on the arrest because of the timelines involved – including a 12-month ‘exit period’ (Article 127 of the Rome Statute).

Woolaver had the following to say on the question of immunity:

Perhaps the most controversial aspect of the arrest warrant against Putin is the question of immunity. As a sitting head of State of a non-ICC State party, and without a Security Council referral to the ICC, many might wonder whether he should benefit from immunity ratione personae under customary international law.

After all, while Artcle 27(2) of the Rome Statute rejects immunity as a bar to the exercise of the Court’s jurisdiction, Article 98 explicitly preserves “State or diplomatic immunity” of “third States”.

After some prevarication by the Pre-Trial Chambers, the ICC Appeals Chamber held in Al Bashir: “There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court” (para 113).

Further, the Appeals Chamber also held that this denial of immunity applied to ‘horizontal’ relations between States when seeking to enforce ICC arrest warrants domestically. This judgment has not met with universal approval. Among other criticisms, this interpretation “in violation of principles of treaty interpretation, seem[s] to render Article 98 redundant”.

The arrest warrant against Putin is the first test of this expansive denial of immunity.

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