Aleksei Malenko
Igshaan Higgins
In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin.
This warrant requires member states to arrest Putin if he enters their jurisdiction. Despite the absurdity of attempting to detain the supreme commander of a major nuclear power with diplomatic immunity, it has been confirmed that President Putin will not personally attend the BRICS Summit in Johannesburg this month.
Nevertheless, it is important to discuss the ICC’s flawed arrest warrant and its implications for policy.
This year, South Africa holds the chairmanship of BRICS – an organisation challenging the dominance of the Western collective and its long-standing history of colonialism, both historical and in the form of neo-colonialism.
The EU, which lacks independence from Washington, considers itself Africa’s privileged partner. It exerts paternalistic control over the continent, forcing its policies upon African countries while refusing to take responsibility for the crimes committed by European colonial regimes.
The EU’s aim is to maintain Africa’s subordinate position in the West’s confrontation between “democracies” and “autocracies”, effectively turning Africa into a source of raw materials for the West.
In contrast, Russia aims to establish equal and mutually beneficial relationships with all countries, including the BRICS members – Brazil, India, China, and South Africa.
Russia recognises Africa’s potential and supports its pursuit of a more just multipolar world, seeking to eliminate the growing socio-economic inequality perpetuated by certain developed states’ neo-colonial policies.
Turning to the ICC, it is crucial to distinguish between two international organisations: the UN International Court of Justice and the ICC itself.
While the former aims to resolve international disputes, the latter often reflects the interests of a select group of countries and seeks to limit state sovereignty through provocative actions.
Russia, like China and other states, does not recognise the ICC’s decisions and considers them legally invalid. It is notable that even the US, a vocal opponent of the ICC, adopted a law in 2002 allowing the use of force to free Americans detained under ICC decrees.
The consequences of other states adopting similar exceptionalism and using force against resource-rich countries or their Nato allies (the ICC is based in The Hague) are worrisome.
As mentioned earlier, South Africa, a member of the ICC, will be obligated to arrest President Putin if he attends the BRICS Summit. This creates political pressure on both Russia and South Africa ahead of their first face-to-face meeting since the Covid-19 pandemic. However, doubts remain not only politically, but also legally.
The ICC’s arrest warrant for President Putin has sparked debates worldwide regarding its effectiveness and jurisdiction.
However, an examination of the current global political landscape reveals significant obstacles that render the warrant ineffective.
The primary hindrance lies in Russia’s non-membership in the ICC.
Since Russia is not a party to the ICC’s founding treaty, the Rome Statute, any warrant against a Russian national requires endorsement from the United Nations Security Council (UNSC).
This endorsement remains unattainable since Russia, as a permanent member of the UNSC, holds veto power alongside the US, China, France, and the UK. Thus, even if the ICC issues an arrest warrant, Russia can easily veto any attempt to seek UNSC endorsement, effectively nullifying the warrant’s impact.
Obtaining UNSC endorsement for arrest warrants is further complicated by the BRICS alliance’s membership.
Both China and Russia, as major emerging economies, share similar positions on global issues related to sovereignty and interventionism.
Consequently, achieving unanimous support from the UNSC for warrants involving BRICS leaders, including President Putin, is highly unlikely.
The success stories of ICC arrest warrants leading to prosecutions should not be disregarded. Bosco Ntaganda, a former rebel leader in the Democratic Republic of Congo, was arrested and ultimately convicted on war crimes and crimes against humanity charges after surrendering to the ICC in 2013.
However, it is important to note that Ntaganda’s case did not involve a permanent member of the Security Council with veto power, making it an exception rather than the norm in situations regarding leaders of such nations. The structure and privileges of the United Nations Security Council give substantial influence to the five permanent members, especially when it comes to matters of international justice.
The veto power allows any of these permanent members to block the adoption of any substantive resolution, even if such a resolution has majority support.
Considering Russia’s non-membership in the ICC and its status as a permanent member of the Security Council, any arrest warrant against President Putin is inherently defective.
The Security Council endorsement requirement, along with the potential use of the veto power, creates a diplomatic deadlock that hinders the enforcement of such a warrant.
Unless Russia ratifies the Rome Statute or significantly changes its stance on ICC jurisdiction, any attempt to hold President Putin accountable through the ICC will likely face insurmountable obstacles.
As the global geopolitical landscape evolves, it becomes essential for international legal frameworks to address the procedural limitations, sovereignty concerns, and power dynamics that hinder the effectiveness of global justice mechanisms.
Until then, the arrest warrant against President Putin remains symbolic at best, leaving unanswered questions regarding accountability and justice.
A defective arrest warrant directly defies the rule of law, jeopardising the fundamental principles that support a just and fair society. The absence of legal certainty, infringement of procedural rights, erosion of judicial oversight, and potential for arbitrary exercises of power all contribute to the violation of the rule of law.
It is imperative that legal systems establish robust mechanisms to ensure the issuance of valid arrest warrants, reinforcing public trust in the justice system and upholding the principles on which the rule of law relies.
Therefore, South Africa is under no legal obligation to execute a defective arrest warrant issued by the ICC against President Putin.
Cape Times