On 17 March 2023, the International Criminal Court issued an arrest warrant for Russia’s President Vladimir Putin on charges that he was responsible for the war crime of illegally transferring children from occupied areas of Ukraine to Russia.[1] This is only the second time the ICC has issued an arrest warrant against a sitting head of state, the first being against Omar Al Bashir, then President of Sudan in 2009.[2] Some commentators have highlighted that this development would be a positive one from the perspective of Global South countries, as it is the first time a powerful state with a permanent seat on the Security Council has been indicted.[3] However, that might be a little bit too simplistic a way of looking at things.
The article seeks to analyse the two arrest warrants, how the ICC acquires jurisdiction over states not party to it, it also discusses the immunity of heads of state and the crucial role of states such as South Africa in upholding this arrest warrant. Finally, it looks at all these issues from the perspective of the Global South, and particularly Pakistan.
Background: The ICC’s Jurisdiction
Pursuant to article 12(1) of the RS the ICC has jurisdiction to try all the crimes[4] committed in the territory of a state party to the statute. Some of the other ways in which ICC can accept jurisdiction is if.
- Non-state party accepts jurisdiction of the court.[5]
- Ukraine accepted ICC’s jurisdiction to try crimes committed in its territory by Putin due to which the ICC opened an investigation on March 2.[6]
- Upon referral from a state party.[7]
- The ICC received 39 state referrals to investigate the situation in Ukraine which further provided jurisdiction to the ICC.[8]
- The crimes were referred to the ICC Prosecutor by the United Nations Security Council (UNSC).[9]
- On 31 March 2005 the UNSC referred the ICC to the situation in Darfur in Sudan where Bashir allegedly committed crimes.[10] Following this the ICC accepted jurisdiction and opened an investigation.
- This mode of obtaining jurisdiction was not possible in the case of Ukraine as Russia is a permanent member of the Security Council and so would have vetoed any such resolution.
As the RS was not ratified by either Russia or Sudan, the ICC did not have the automatic right to try the crimes committed by Putin and Bashir, it acquired jurisdiction in the ways mentioned above and therefore issued the arrest warrants.
Immunity from Prosecution
Ordinarily, under customary international law, a head of state would enjoy immunity ratione personae by virtue of their role from being tried in another state’s domestic courts. This form of immunity is personal, or status based and is premised on pragmatic considerations in that international cooperation between states from which political, economic, social, and cultural benefits flow is entirely dependent on effective communication processes. Therefore, international law protects those processes to facilitate the smooth conduct of international relations.
Article 27(2) of RS states that this does not apply in front of it as “immunities which may attach to the official capacity of a person shall not bar the court from exercising its jurisdiction”.[11]This was reiterated in the ICC’s judgment in the Al-Bashir case, that the immunity accorded to a head of state from prosecutions ceases to exist before the ICC.[12] The issue before the court in that case was that some states had failed to cooperate and execute Bashir’s arrest on the rationale that Bashir was still a sitting head of state and therefore was protected by immunity in their jurisdiction. The ICC addressed this and stated that when complying with the arrest warrant the state parties are acting on behalf of the ICC and not on their own behalf as a state party. Therefore, even if it is their jurisdiction, immunity does not apply as they are state parties acting for the ICC.
The court stated that article 27(2) forms part of customary international law [“CIL”] that heads of state are not protected by immunity under the ICC or any other international court.[13] The court referred to the statutes of ICTY[14] and ICTR[15] and particularly the ICJ[16] in the “Arrest Warrant Case”.[17] The ICJ held that CIL provided immunity to certain officials but in national jurisdictions. Therefore, the ICC made a distinction that an official would enjoy immunity in national courts but if the matter is referred to by the ICC, the immunity in national jurisdiction of a state party ceases to exist.[18]
Immunity ratione personae was also barred to preclude jurisdiction in the Nuremberg Tribunal where it was held that “He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law”[19] and article 7 of the Charter of the Nuremberg Tribunal[20] supports this proposition. Contrary to what is often argued, there has been long standing support for barring the defence of immunity when there is a violation of international law and academics have argued that “the era of absolute immunities is long gone”.[21] This reiterates the earlier position that Putin and Bashir’s immunity does not stand once they are before an international court.
However, while an official would continue to enjoy immunity before the international court it is a different question as to how to get them to that court. In that, they would still enjoy immunity in a state’s territory by virtue of their state not being a party to the RS. Some scholars have argued that the ICC’s ruling in Al-Bashir was dangerous because “it takes away the rights of non-party states under international law”.[22] In that by saying Article 27 is CIL it defeats the purpose that the RS only applies to parties who have ratified it.
Moreover, there is no state practice which could suggest the acceptance of this CIL by non-state parties. Bashir had traveled to over 22 states until 2016 until he was ousted in 2019 and was not arrested by any of them.[23] States such as China (not a party to the ICC) have welcomed Bashir in the past and defended his visit and frequently acted against the orders of the ICC.[24]
Overview of the ICC’s arrest warrant mechanism
This argument in favour of immunity holding in a national jurisdiction but not before an international court does not, in my view, hold up practically. The ICC does not have its own enforcement body and relies on state cooperation to secure such arrests. The various forms of cooperation include assistance with the identification and whereabouts of suspects, taking of evidence, questioning of persons, service of documents, execution of searches and freezing and seizure of assets.[25]
A state party is not allowed to question the legality of the warrant and is under a general obligation to cooperate.[26] Under Article 89 of the RS it has the power to request/order a state party to arrest a warrant subject to exceptions. One exception being under Article 98(1) that the court “must not place a state party in a situation where it is required to act inconsistently with its international legal obligations”.[27] However, as mentioned, the ICC Appeals Chamber in the Jordan referral regarding Al Bashir held that immunity is not a bar to prosecution before the court and that state parties are obliged to assist the court.
This further raise’s support for the proposition that state parties should comply with the orders of the ICC not only because they have a duty to, but also because Immunity ratione personae would not apply to alleged perpetrators of international crimes. Therefore, there is no inconsistency between state parties’ obligations to arrest Al Bashir and their obligations under the customary law of immunity.
The Case of Omar Al Bashir
Omar al-Bashir was the head of state for Sudan[28] for almost two decades. During his rule the Darfur conflict arose when the non-Arabs and non-Muslims in Darfur demanded equality in the division of natural resources and equal representation in various areas as they had been marginalised in the South, the Nuba Mountains, and the Red Sea region.[29]
The ICC charged him with five counts of crimes against humanity, two counts of war crimes and three counts of genocide.[30] The ICC issued a first arrest warrant in 2009 and second arrest warrant in 2010. Despite this, until today Bashir has not been presented to the ICC to undergo his trial, and without his physical presence in the courtroom, the ICC cannot start a trial.[31]
As the ICC relies on state cooperation for the execution of the warrant, over the decade there have been many instances of non-compliance by state parties namely by Kenya, Djibouti, Chad (twice), Malawi, Nigeria, and the Democratic Republic of Congo [“DRC”]. A specific focus is put on non-execution of the warrant by South Africa in the Al Bashir case. This is because as Putin is set to travel to South Africa later this year in August 2023, previous non-compliance is relevant to assess if Putin will potentially be arrested by South Africa.
In 2015 Bashir traveled to South Africa for an African Union Summit. Initially the South African authorities did not arrest Bashir on the basis that as the head of state he has immunity[32] and the matter was sent to the domestic court for adjudication. The Court held that the South African authorities were “compelled to take all reasonable steps to arrest President Al-Bashir”.[33] Omar Al Bashir left South Africa before he was arrested, he was able to defy the court orders and escape.[34]
Bashir had the chance to escape arrest whilst the court was considering his arrest but as a precedent has been set to comply with the ICC warrant, the important question remains whether Putin will be arrested when he travels to South Africa for the BRICS Summit in August.[35]
Even though Sudan has not ratified the RS, Bashir was ousted from power in 2019, in 2021 Sudan’s Minister of Foreign Affairs Mariam al-Sadiq al-Mahdi announced that Sudan would hand over Bashir.[36] No timeframe was given, and Omar Al Bashir is still not handed over, leaving ICC dependent on Sudan to begin its long-awaited trial.
The Case of Vladimir Putin
Putin has been charged for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.[37] The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022.[38]
The Kremlin has refused to acknowledge or accept the charges on the basis that the Court does not have jurisdiction, and instead issued criminal proceedings against the ICC prosecutor and judges who issued the warrant.[39] Nevertheless the arrest warrant stands legally sound which means Putin might have to rethink some of his future trips to South Africa and Tajikistan.[40] Both of which are parties to the ICC.
Russia is a permanent member of the Security Council it is likely that state parties may choose not to execute the arrest for political reasons. Hungary as an ICC member signaled that they will not arrest Putin even if he visits Hungary.[41] Some factors that prompt this statement are that Hungary does not maintain close ties with its European neighbors or its NATO allies.[42] Russia and Hungary have maintained strong economic ties[43] and despite the war “Russia is able to complete maintenance on the TurkStream gas pipeline and Hungary’s natural gas supplies will remain undisturbed”.[44] Hungary has come out in open support for Putin post the arrest warrant however not all states will openly declare their support. This uncertainty creates further difficulty for ICC to determine the success of the warrant and predict which state, if any, is more likely to comply.
The warrant has nevertheless already affected Russia in different ways. The Russian government is hosting its second Russia-Africa Summit and “the lack of strong foreign attendance at senior levels for those events in Russia would be detrimental to Russian foreign policy”.[45] The aim of the arrest warrant is symbolic as well as legal – it serves as a deterrent for other states to engage with Putin and seeks to isolate him diplomatically.[46]
Effects of non-cooperation
State party
Article 87(7) of the Rome Statute provides that “Where a State Party fails to comply with a request to cooperate by the Court…the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”[47]
ICC did not refer South Africa’s non-compliance to the SC.[48] As the ICC maintains discretion, two arguments were put forward as to why a referral was unwarranted; that South Africa was cooperative towards the Court in the procedure and that a referral would be serve no purpose as South Africa has now understood its obligation and that the UNSC or the ASP would not take any action either. The underlying reasoning for this could be that either states would not comply still which would reflect badly on the court or that sanctions would seem disproportionate in what is already a contested area of the law.
However, the ICC should have trusted the UNSC to take appropriate action and perform its function. The precedent would have showcased UN’s support for the ICC’s work and attracted more cooperation from states. In my view, the ICC missed a chance to use the UN’s platform and create an example and it is possible history might repeat itself with Putin’s travel arrest to South Africa. Only time is to tell whether South Africa has really recognised its obligations and is ready to uphold them. In this case, UNSC action would not be an option as Russia is on the P5 and has previously used its veto power to prevent the UNSC from taking any action on Ukraine.[49]
The View from Pakistan
Pakistan has not ratified the RS and since the beginning of the Ukraine-Russia war it has maintained neutrality, urging the parties to resolve the conflict, and expressing its commitment to uphold the UN Charter.[50] Pakistan also maintained neutrality when the ICC issued Bashir’s arrest warrant and Sudan and Pakistan maintained cordial relations.[51]
Pakistan will probably not be placed in a difficult position because it is not a party to the ICC. However as previous case law suggests, in the Al Bashir case where the ICC held that Article 27(2) of RS abolishes immunity in international court proceedings and creates CIL, the ICC whilst employing a radical approach equating state parties to non-state parties, could place an obligation on non-state parties such as Pakistan. Though, it does not seem that Putin has any plans to travel to Pakistan, yet.
Furthermore, Pakistan may be asked to ratify the RS for GSP+. Again, while this option is on the table, Pakistan has stayed resolute on some issues even when it comes to GSP+. For instance, Pakistan previously refused to abolish the death penalty so we could maintain our right of refusal when it comes to the RS also.[52] However such a refusal can have a significant impact and the EU may suspend GSP+ deteriorating Pakistan’s trade relations and making it more vulnerable to economic instability.[53] Moreover, Pakistan’s refusal to abolish the death penalty may make things worse if we also do not ratify the RS, rendering us even more prone to losing its GSP+ status.
Furthermore, there may be an interesting clash between domestic and international law at play if we do ratify the RS. While Article 27(2) of the RS precludes the invocation of head of state immunity, Article 248 of Pakistan’s Constitution provides absolute immunity to heads of state. Therefore, it may be at odds with domestic law to enforce an arrest warrant against the head of state. As Pakistan is a dualist state, merely ratifying the treaty will not play a significant role as compared to its implementation. The Ratification of International Treaties Act (2013) in Pakistan provides that “the Parliament shall not ratify a treaty if its provisions are contrary to the fundamental rights guaranteed by the Constitution”.[54] The question of whether head of state immunity counts as a fundamental right is doubtful but may need to be reconciled by Pakistan’s judiciary. This may lead to interesting precedent like that in South Africa’s constitutional court. This is all speculation though as Pakistan is currently not at risk of any of these events occurring.
What is interesting to note for Pakistan is the way politics between the great powers are playing out in international legal forums. Russia is currently the antagonist in the international field for violating international law but the similar attitudes towards the court by two of the P5s; Russia and USA[55] is disregarded. US has supported the ICC’s warrant for Putin and President Biden said it is ‘justified’[56], despite the US itself refusing to ratify the RS on many occasions. Significantly, the US still has a law on its books, the Hague Invasion Act (2002), which gives the US the power to invade the Hague if any American is tried in its docket.[57] Of course, the US welcomes the ICC’s jurisdiction when Russia is the target. This raises questions not just relating to the legitimacy of the powers of the ICC and whether they apply to all states equally when the ICC’s jurisdiction is invoked but also shows how states such as the US can leverage the rules of international law in their interest.
Conclusion
This article has analysed both the Putin and Bashir arrest warrants and argues that while the current arrest warrant is likely to fail to meet its required legal purpose, it does play a political role[58] and ‘is an instrument for the diplomatic isolation of President Putin’.[59] The ICC’s failure in the past to take any action against non-compliant states such as South Africa suggests states are ready to face repercussions with the ICC rather than distort international relations which could sever important economic and political ties. The effects of Putin’s warrants are yet to be seen once he begins traveling and whether state parties, especially South Africa, will do things differently than in the Bashir case. Moreover, the view from the perspective of countries like Pakistan is mostly as a spectator watching global power politics play out in international legal fora, a trend that is likely to increase rather than diminish as time goes on.
References
[1] Situation in Ukraine <https://www.icc-cpi.int/news/situationr> Accessed 20 May 2023
[2] Al Bashir Case <https://www.icc-cpi.int/darfur> Accessed 20 May 2023
[3] Straight to the top: The International Criminal Court issues an arrest warrant for Russia’s Vladimir Putin
<https://justiceinconflict.org/> Published 17 March 2023.
[4] Crimes falling within article 5 of the Rome Statute
[5] Article 12(2) of the Rome Statute
[6] Ukraine <https://www.icc-cpi.int/situations> Accessed 20 May 2023
[7] Article 15 of the Rome Statute
[8] Ukraine <https://www.icc-cpi.int/situations> Accessed 20 May 2023
[9] Article 16 of the Rome Statute
[10] The Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09 <https://www.icc-cpi.int/sites/default> Accessed 20 May 2023
[11] Article 27(2) of the Rome Statute
[12] The Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09 <https://www.icc-cpi.int/sites/default> Accessed 20 May 2023
[13] The Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09 <https://www.icc-cpi.int/sites/default> Accessed 20 May 2023
[14] Article 7(2) of the International Tribunal for the Former Yugoslavia Statute
[15] Article 6(2) of the International Tribunal for Rwanda Statute
[16] International Court of Justice
[17] Arrest warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, I.C.J. Reports 2002.
[18] The Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09-139, para 34 <https://www.icc-cpi.int/sites/default> Accessed 20 May 2023
[19] Trial of the Major War Criminals before the International Military Tribunal, Vol. I (Nuremberg, 1947), p. 223.
[20]<https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.2_Charter%20of%20IMT%201945.pdf> Accessed 29 May 2023
[21] Heads of State Immunities <https://brill.com/view/journals/icla/18/4/articl> Published 10 November 2018
[22]Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’ <https://www.ejiltalk.org/ic> Published May 6 2011
[23] An Indicted War Criminal Travels <An Indicted War Criminals TravelsNuba Reportshttps:/> Accessed 29 May 2023.
[24] China welcomes Sudanese president Omar al Bashir <China welcomes Sudanese president Omar> Published 16 June 2011
[25] Article 93 of the Rome Statute
[26] Article 86 of the Rome Statute
[27] Article 98(1) of the Rome Statute
[28] Sudan has never been a party to the RS.
[29] Ahmad Sikainga, ‘’The World’s Worst Humanitarian Crisis’: Understanding the Darfur Conflict’ <Understanding the Darfur Conflict> Published February 2009.
[30] Al Bashir Case <https://www.icc-cpi.int/darfur> Accessed 20 May 2023
[31] How the Court Works <https://www.icc-cpi.int/about/> Accessed 20 May 2023
[32] Clutching at straws: SA’s reasons for not arresting al-Bashir <https://issafrica.org/iss-today> Published 18 April 2017
[33] Southern African Litigation Centre v. Minister of Justice and Constitutional Development and Others [2015] (27740/2015).
[34] Owen Bowcott, ‘Sudan President Omar al-Bashir leaves South African as court considers arrest’ <https://www.theguardian.com/world> Published 15 June 2015
[35] Putin ICC arrest warrant debate goes on as in South Africa, <https://www.aljazeera.com/news> Published 3 May 2023
[36] Why has Sudan decided to hand over al-Bashir to the ICC? <https://issafrica.org/iss-today/> Published 21 September 2021.
[37] Under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute
[38] Situation in Ukraine <https://www.icc-cpi.int/news/situationr> Accessed 20 May 2023
[39] After arrest warrant for Putin, Russia opens case <https://www.aljazeera.> Published 20 March 2023
[40] Arrest warrant issued for Putin over war crime allegations <https://www.bbc.co.uk/news/live/world-europe> Accessed 20 May 2023
[41] NATO ally Hungary throws Putin a lifeline<https://www.businessinsider.com/nato-ally-hungary-says-T> Published March 23 2023
[42] Judy Asks: Is Hungary a Reliable EU and NATO Member? <https://carnegieeurope.eu/strategiceurope/89416> Published March 30, 2023
[43] Russian influence in Hungary <https://www.europarl.europa.eu/cmsdata/256493/OJf> Accessed 25 May 2023
[44] Foreign Minister discusses Hungary <https://abouthungary.hu/news-in-brief/foreign-minister-> Published March 30 2023
[45] How the ICC’s Warrant for Putin could impact the Ukraine War, <https://www.usip.org/publications/2023/03/how-iccs> Published March 23 2023
[46] The ICC Goes Straight to the Top: Arrest Warrant Issued for Putin, <https://www.justsecurity.org/85529/the-icc-goes-straight-to-the-top-arrest-warrant-issued-for-putin/> Published March 17, 2023
[47] Article 87(7) of the Rome Statute.
[48] Al Bashir case: : ICC Pre-Trial Chamber II decides not to refer South Africa’s non-cooperation to the ASP or the UNSC <https://www.icc-cpi.int/news/> Accessed 21 May 2023
[49] Russia blocks Security Council action on Ukraine <https://news.un.org/en/story/2022/02/1112802> Published 26 February 2022
[50] Pakistan concerned over Ukraine war <https://www.dawn.com/news/1738833> Published February 23, 2023
[51] Sudan and Pak strengthen trade ties <https://thediplomaticinsight.com/sudan-and-pakistan-strengthen-trade-ties/> Published March 23, 2022
[52] Pakistan refuses to abolish death penalty for GSP+ <https://tribune.com.pk/story/2364137/pak> July 1 2022
[53] Pakistan <https://gsphub.eu/country-info/Pakistan> Accessed 29 May 2023
[54] Section 5(3)
[55] United States of America
[56] Joe Biden welcomes ICC arrest warrant for Vladimir Putin
<https://www.theguardian.com/us-news/2023/mar/18/joe-biden-welcomes-icc-arrest-warrant-vladimir-putin> Published 18 March 2023
[57] The US and the ICC: Prospective Revitalization of the ‘Hague Invasion Act’ Under the Trump Administration <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2926463> Published 30 January 2017.
[58] Russia’s war on Ukraine <https://www.europarl.europa.eu/RegData/etude> Published April 2023
[59] Putin Arrest Warrant: International Law and Perceptions of Double Standards <https://opiniojuris.org/2023/03/27/putin-arrest-warrant-international-law-and-perceptions-of-double-standards/> Published 27 March 2023
