The International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin on March 16 for the illegal deportation of at least 100 Ukrainian children.

That presents a nasty problem for South Africa, which will host the fifteenth BRICS (Brazil, Russia, India, China, South Africa) in Durban on August 22-24 this year, as it has invited Putin.

South Africa is one of the 123 nations that are signatures to the ICC, of which 33 are in Africa. In theory as a member of the court, South Africa is obliged under Article 86 of the ICC statute and domestic law, as compliance with ICC orders is written into South Africa’s constitution, to co-operate fully by arresting the Russian president as soon as he steps off the plane and ship him to The Hague for trial.

What makes the government of President Cyril Ramaphosa’s predicament so embarrassing is that it has come out in favour of Russia in the geopolitical showdown with the West following Russia’s invasion of Ukraine just over a year ago.

As bne IntelliNews reported, Western and Russian diplomats have been travelling the world recently trying to shore up support but Pretoria rebuffed US Secretary of State Antony Blinken during a recent trip and instead chose to hold naval exercises that pointedly started on February 24, the anniversary of the start of the Ukraine war.

Pretoria’s cosying up to Moscow is driven by long-standing good relations and the fact that South Africa is currently in the midst of a debilitating energy crisis and is asking Russia to expand its nuclear power station, which Russia has also promised to finance.

Pretoria is not sure what to do, and said two weeks ago that it was seeking legal advice.

“We are awaiting a refreshed legal opinion on the matter,” South Africa’s International Relations and Co-operation Minister, Naledi Pandor, told state broadcaster SABC on March 24.

Complying with its domestic and international obligations by executing the arrest warrant would alienate Russia, with bilateral and BRICS-related consequences, especially given Moscow’s strong ties with Beijing – another key partner for South Africa. On the other hand, welcoming Putin would see the country lose international credibility, potentially resulting in the loss of preferential trade terms and its treatment of exports to the US under the African Growth and Opportunity Act (AGOA). Washington has already used AGOA as a punishing tool against Ethiopia, The Gambia and Mali for “unconstitutional change in governments” and “gross violations of internationally recognised human rights”. And currently South Africa’s trade with the US far exceeds that with Russia.

This is not the first time South Africa has been here. It faced a similar dilemma in 2015 when Sudanese President Omar Al Bashir visited the country to attend a summit of African Union heads of state. Under South Africa’s ICC obligations, the Zuma administration was obliged to arrest Al Bashir, who had been indicted for violations of international humanitarian law and human rights law in Sudan’s Darfur region.

That time Pretoria ducked the punch and refused to arrest him, citing immunity from prosecution for sitting heads of state under international law. Zuma’s government notified the United Nations secretary-general of its intention to withdraw from the Rome Statute, the ICC founding treaty, but that ruse blew up after it was rejected by the South African High Court, which ruled the government didn’t the authority to unilaterally pull out of the agreement without first getting the approval of Parliament. Zuma’s government eventually had to “withdraw its withdrawal".

The decision violated both international and domestic law, as provisions to deal with this exemption are built into the ICC charter, and the upshot was the South African government was condemned by its own civil society and in court. In 2017, the ICC found that South Africa had failed in its obligations under the Rome Statute towards the court by not arresting and surrendering Al Bashir. The court, however, decided not to pursue the matter further for pragmatic reasons.

However, in Putin’s case, there are a number of alternative options available to avoid another round of international condemnation and court battles by civil society for non-compliance with the country’s own court decisions.

The most obvious solution is to uninvite Putin and ask the delegation to be led by Russia’s veteran Foreign Minister Sergei Lavrov instead of Putin. Secondly, Putin could attend the summit virtually, which has become common since the COVID-19 pandemic. Ukrainian President Volodymyr Zelenskiy continues regularly to attend numerous international meetings virtually, given the difficulty he has with leaving a warzone. Moreover, it's simple for Putin to sign the summit documents electronically or after the summit, if a non-electronic signature is required.

Given the uncertain legal position and the headaches that come with it, it is now unlikely that Putin will attend in person. However, Africa has become increasingly important to Russia, which is actively wooing leaders to join its coalition of the non-aligned. Russia just hosted 40 African lawmakers on March 21 in Moscow, in the midst of Chinese President Xi Jinping's three-day state visit to Russia, where Putin took time out from his meetings with the Chinese leader to speak to the delegates, offering them cheap energy, free grain, Russian-financed nuclear power and arms, as well as reminding them of their ill treatment at the hands of the colonial powers. Russia also intends to hold a second Russia-Africa summit in July in St Petersburg at the level of heads of state in July just before the BRICS summit. And as the various UN votes to condemn Russia’s invasion of Ukraine show, Russia has a lot of support in Africa.

Ramaphosa's spokesperson said that the country was aware of its obligations to arrest Putin and surrender him to the ICC, Foreign Relations Minister Naledi Pandor confirmed the invitation to Putin to attend the BRICS meeting, noting that the cabinet would have to decide on how to respond in view of the ICC warrant. The government needs to balance its ICC obligations, domestic responsibilities and historically friendly relations with Russia carefully to avoid any repercussions.