International Criminal Court Warrant for Putin's Arrest: Where Are the Limits of Presidential Immunity?

The Republic of South Africa invites all the leaders of the member countries of the association to the BRICS summit. The President of the Russian Federation, Vladimir Putin, should also arrive - although the International Criminal Court has issued a warrant for his arrest. What to expect?
Putin already has an invitation to attend the BRICS summit, which will be held at the end of August in Johannesburg. Such invitations were received by the leaders of all member countries of this association - China, India, Brazil, South Africa and Russia, said the Minister of Foreign Affairs of the Republic of South Africa, Naledi Pandor. However, Russian President Vladimir Putin is in a special situation this time.

Where does the immunity of state leaders end?
After all, if Putin finds himself on the territory of South Africa, the authorities of this country must detain the Russian leader and hand him over to the International Criminal Court (ICC), whose president issued a warrant for Putin's arrest in March. And South Africa, which previously ratified the Rome Statute (the treaty that forms the basis of the ICC, in which Russia is currently not participating), has since recognized the jurisdiction of this Court. Meanwhile, in earlier statements on the occasion of the BRICS summit, representatives of the South African authorities referred to the immunity enjoyed by all participants of international conferences in this country.
"Immunities exist to facilitate the application of international law and generally ensure the maintenance of international relations," explains Christoph Safferling, professor of international law at the University of Erlangen-Nuremberg.
After all, according to the professor, heads of state and government should be able to meet without fear of being accused by the national courts of other countries. However, according to Zafferling, immunity has limits.
In several of its judicial decisions, the ICC has noted that the immunity of even current heads of state does not extend to the jurisdiction of international courts.
"This is the legal norm under the Rome Statute and there are no exceptions," continues Professor Zafferling.
In other words, even the immunity applied during the international conference has no legal force against the president who is wanted under an international criminal warrant.

A precedent with Omar al-Bashir's visit to South Africa

The same applies to South African legislation. There is already a corresponding precedent, and it is related to South Africa. Vladimir Putin is the second current head of state for whom the ICC has issued an arrest warrant. The first was the then president of Sudan, Omar al-Bashir.
And he came to South Africa in 2015 for an international conference. South Africa was supposed to extradite the Sudanese dictator - instead, he flew out of the country unmolested during a covert nighttime operation.
"Subsequently, the Constitutional Court (US) of South Africa ruled that the authorities should have arrested Al-Bashir and that they had in principle violated their own legislation. This decision of the Constitutional Court is still valid today. This means that refusing to extradite Putin would violate international and South African law," says Kristoffer Burck, researcher at the Hessen Foundation for Peace and Conflict Studies (HSFK) at the Leibniz Institute.

Is Putin a welcome guest in South Africa?
What will happen at the BRICS summit in August? Is it possible that Putin will still participate in the summit in South Africa? Theoretically – yes, because the ICC has little ability to apply sanctions against those who do not comply with its decisions.
"One could issue a warning by pointing out that the warrant (for Putin's arrest. op.aut.) exists and must be executed, and then clearly call what happened, the failure of South Africa. But after all, it has already happened," says Zafferling.

Because, unlike nation states, the ICC does not have its own police to enforce existing laws. Therefore, the ICC depends on the observance of the provisions of the Rome Statute by the states that have ratified it.
  "The one who does not do this and does not support the implementation of the contract weakens the court. This is quite clear, because in this case the order would not be worth the paper it is written on. This would be a weakening of the ICC", Zafferling believes.
Initially, according to observers, the warrant for Putin's arrest was intended as a strong signal. Even a politician like Putin should not feel safe from prosecution.
"The International Criminal Court also did it in order to give a very clear position about itself - to say: I am here, I can do it, I want it and I will get it," adds Professor Zaferling.
In general, according to the professor, after the decision of the International Court of Justice, international law gained weight. Unlike in 2015 when Sl-Bashir visited South Africa, now Putin's visit there is talked about in advance, and the warrant for his arrest is seen as something serious.
"Now it's not so easy to get around, there's even an arrest warrant. Now it has to be taken into account in diplomatic negotiations. It's impossible without that, and this is really good news," continues Zafferling.
His colleague Christopher Burke is not so optimistic. He fears that the warrant for the arrest of the current president of Russia could come back as a boomerang to the ICC itself. "The danger is extremely high that a case will be opened in which someone is prosecuted, but that person will not be arrested for years. In fact, if Putin does not make any mistakes, he will not be arrested. This means that the case will remain open for years and decades. For the essence of the functioning of the court - the administration of justice by making decisions - this is very dangerous," warns Burk.
So far, there are few such cases. Putin is only the second current head of state for whom the ICC has issued an arrest warrant. How successful the court will be depends to a large extent on the countries that have recognized its jurisdiction. All these procedures still take time, Zafferling admits.
"And we'll probably be doing that for a while," Zafferling concludes.