BRICS Summit – a Test for Justice for Ukraine and the World

This year’s BRICS Summit unintentionally has put the world’s justice system to its most rigorous test to date, and it is safe to conclude that the world together with Ukraine got an "F": the war is raging on; the ICC arrest warrants are not going to be executed anytime soon and Ukraine is still on the proverbial "justice fence". Now it is time for the feedback. 

Lay of the Land

Earlier this year the judges of the International Criminal Court issued arrest warrants for Russian President, Vladimir Putin and Russian Commissioner for Children’s Rights, Maria Lvova-Belova. Both are being accused of a war crime of unlawful deportation and/or unlawful transfer of civilian population including children from Ukraine to Russia following full-scale invasion of Ukraine by Russia which began on 24 February 2022. 

Russian President Vladimir Putin had initially been expected to attend this year’s BRICS (an economic alliance of Brazil, Russia, India, China and South Africa) Summit, however, debates as to his attendance emerged immediately after the arrest warrant was made public.  Reason for this is South Africa being the host country for this year’s Summit and the only state party to the ICC’s Rome Statute from the list of the BRICS members. It is thus under an obligation to cooperate with the ICC (Art. 86) to arrest and surrender any suspect who turns up on its territory (Art. 89). 

Back in June a group of African states led by South Africa’ as African Peace Mission travelled to both Ukraine and Russia to try and broker peace, however, it failed to deliver any tangible  results. Another point on their agenda was to ensure that Russia adhered to the grain deal whereby it would allow passage of the grain exports through the Black Sea to alleviate food insecurity throughout African region. 

A few weeks ago, however, Russia pulled out of the Black Sea Grain Deal in an attempt at blackmailing the international community into lifting sanctions because of its aggression against Ukraine.  

On the heels of the Russa’s announcement about halting the grain deal, it was revealed on 19 July that Putin would not be travelling to the BRICS Summit this year, instead Russia will be represented by Russia Foreign Minister Sergey Lavrov. Allegedly that was the deal reached to get South Africa’s President Cyril Ramaphosa out of a very controversial predicament. On 21 July the High Court of South Africa issued an Order obliging to execute the ICC arrest warrant. The explanation for public consumption has been the "risk of an open war with a nuclear state". However, I am going to go out on a limb here and suggest that this was not the real reason. 

Russia is already stretched too thin because of all the wars it is participating in but worst of all in Ukraine.  The real reason could be the risk of undermining one of "their own", "shooting themselves in the foot" whatever way one wishes to put it: just this year the BRICS countries collectively overtook the G7 in the share of the world GDP while the West has been faced with the growing economic stagnation. Furthermore, the BRICS aim is to use cooperation to reshape global economic and political order. Decapitating one of its five members would significantly undermine such cooperation and might even result in losing in this global competition against collective West.

Ukraine meanwhile has been stalling with ratification of the Rome Statute since 2014 despite active campaign by Ukrainian and international civil society organisations, some light pushing by certain states, in particular, the EU throughout the years and the ICC’s investigation into actions of Putin and Lvova-Belova. There has never been a single convincing reason for non-ratification. In fact, every reason that has ever been given by the state of Ukraine has been based on gross misinterpretation and lack of intention to make justice a state policy’s priority. However, its one grave consequence is that by not ratifying Ukraine undermines the only international justice institution in the world supported by 123 states which is currently investing an enormous resource into Ukraine. Furthermore, symbolically speaking, failing to ratify the Rome Statute Ukraine ultimately fails to choose justice for its people. 

…and What of Justice?

Once again, the world has proven that justice is only as good as it gets when it is weaponised.   

One may argue that making the issuance of the arrest warrant against Putin public may have sabotaged a real chance at putting an end to this war by letting the Russian president attend BRICS Summit and executing the arrest warrant against him. However, it is unlikely that South Africa had a real intention to do so to begin with. For that it needed to choose Justice over politics and money. But why then did it not do so for the second time in a row (reference to failing to arrest the ICC fugitive Al Bashir)? The one possible hard truth is because it is the ICC that they are expected to cooperate with.   

In the past few months there have been active public discussions and deliberations about the possibility of South Africa pulling out of the Rome Statute for the reason of the ICC’s inability to deliver on its mandate, the double standards and selectivity. South Africa’s justice minister Ronald Lamola alluded to it in his remarks at the Security Council during 25th Anniversary of the Rome Statute Commemoration event on 17 July. 

Incidentally Ukraine was also invited to the event for the States Parties to the Rome Statute only. In his remarks Ukraine’s foreign minister Dmytro Kuleba stated that Ukraine was late with ratification, but de facto it was already a state party because it was cooperating with the ICC. And not only do the states parties accept such a narrative, but they also continue to indulge Ukraine by inviting to events like this instead of pushing it hard and fast to first ratify the Rome Statute. 

This is precisely why it is hard to disagree with those who do not see the ICC as a true justice implementing institution, independent and resilient to the power of manipulation by more powerful states into doing (or not doing) something to make their top decision makers accountable for their actions. This is right here the ICC’s biggest weakness glaringly obvious to the Court’s adversaries such as Russia herself (e.g. Russia’s representative’s remarks during The ICC Prosecutor’s briefing of Security Counsel on the Situation in Libya)  

The Moral of the Story and the Role of Ukraine 

Despite all of the above, there are enough of us in the world who trust in the ICC because we are driven by the conviction that the ICC was envisaged as a true Justice implementing institution. Ukraine has a critical role to play in ensuring that it delivers on its mandate sooner rather than later by setting an example for those who doubt the value of Justice, its role in deterring armed conflicts and ensuring the international rules-based order.  The first step for Ukraine is to finally ratify the Rome Statute. Once it becomes a fully-fledged member, to continue to demonstrate the real value of Justice by nurturing and promoting it within the ICC and beyond. And maybe one can hope that South Africa or any other state given the chance will choose Justice and cooperation with the ICC in a timely and appropriate fashion over aspirations of political and economic domination. 

Nadia Volkova, Director at Ukrainian Legal Advisory Group