Do States Party to the International Criminal Court Statute have the Obligation to Arrest Vladimir Putin?

Background

On 17 March 2023, Pre-Trial Chamber II of the International Criminal Court (‘ICC’ or ‘the Court’) issued two arrest warrants for people related to the Ukraine situation, including one for Vladimir Putin, who as President of the Russian Federation is the head of a state that is not a party to the Rome Statute of the Court. Dr Sergey Vasiliev and Dr Miles Jackson have already provided some background information as well as insightful comments on certain aspects of this case. This post will mainly discuss whether states party to the Rome Statute have an obligation to arrest Putin as a result of the cooperation request from the Court, if he indeed appears in their territory, and what role the immunity (ratione personae) of Putin as a head of a non-party state would play in this regard.

The relevant provision with regard to the arrest of officials of a non-party state is Article 98(1) of the Statute of ICC which stipulates that the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the immunity of a person of a third state, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. At first sight, it seems that the immunity (ratione personae) of Putin as a head of state of a non-party might prevent the Court from requesting cooperation from a specific state party, if Russia does not waive such immunity. However, the Court, through its own jurisprudence, has expressed a different opinion.

Of particular relevance is the Al-Bashir case before the Court, in which the Pre-trial Chambers and the Appeals Chamber have jointly issued eight decisions ruling that certain states party had violated their obligations under the Statute when they refused to arrest and surrender Al-Bashir to the Court, including Chad, Malawi, Congo, Djibouti, Uganda, South Africa and Jordan. These decisions, though reaching the same conclusion, have actually explored different approaches to the same end, even being inconsistent with each other to a certain degree. Roughly speaking, the avenues they have explored could be divided into Security Council Avenue and Customary International Law Avenue. What is interesting is that the Appeals Chamber in the Jordan Appeal case has based its reasoning on both the two self-standing avenues at the same time. Nevertheless, given that the case at hand is not referred by the Security Council, the author will mainly address the Customary International Law Avenue.

Customary International Law Avenue

Customary International Law Avenue could be further differentiated into two approaches. They adopt similar arguments concerning the non-applicability of horizontal immunity (which is the immunity vis-à-vis states party). However, they differ in how they conclude there is no vertical immunity (immunity vis-à-vis the Court). The following analysis will first address their different approaches to removing vertical immunity, and then their similar approach to horizontal immunity.

Vertical Immunity

The first approach is adopted in cases concerning Chad and Malawi. It reasons that ‘customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes’ (See Malawi case, para. 43). In other words, it admits that traditional customary immunity rules extend to the vertical relationship of states and international courts; it is just that the general practice and opinio juris have afterwards created an exception in this regard. However, this conclusion is not without controversy. Admittedly, most statutes of international criminal courts and tribunals have stipulated the non-relevance of official positions (for example, Charter of the International Military Tribunal at Nuremberg, Art. 7). However, it could be argued that such kind of provision only concerns the substantive responsibility rather than procedural immunity. As pointed out by the International Court of Justice (ICJ) in the Arrest Warrant case (para. 60), immunity from criminal jurisdiction and individual criminal responsibility are separate concepts, and though jurisdictional immunity may well bar prosecution for a certain period, it cannot exonerate the person from all criminal responsibility (see also Jurisdictional Immunities of the State case, para. 58). In other words, the applicability of procedural immunity will not violate the irrelevance of official positions which relates to substantive responsibility. Moreover, even if certain stipulations specifically concern immunity (for example, Article 27(2) of the Statute of ICC), there would still be a question as to whether the relevant treaty provisions suffice to create a rule of customary international law. As the judgment of ICJ in the North Sea Continental Shelf case (para. 76) makes clear, the mere existence of treaties could not automatically make certain rules become customary rules, and it might even be particularly hard to prove the existence of opinio juris in such circumstances, as relevant practices would primarily be regarded as implementing treaty obligations.

The second approach regarding vertical immunity, adopted by the ICC Appeals Chamber in the Jordan Appeal case in 2019, is even more radical. The Appeals Chamber states that ‘international courts act on behalf of the international community as a whole. Accordingly, the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court’ (Jordan Appeal case, para. 115), and only ‘operates in the context of relations between States’ (Jordan Appeal case, para. 101). In other words, instead of arguing that international courts constitute an exception to traditional immunity, the Appeals Chamber argues that there is no such vertical immunity of state officials vis-à-vis international courts from the very beginning. In this sense, the Appeals Chamber holds that Article 27(2) reflects customary international law (Jordan Appeal case, para. 103).

This approach is also controversial. It is generally held that the authority of international courts is ultimately delegated by the states (See Dapo Akande, p. 117; however, there are some different opinions which rather see international criminal courts act on behalf of the international community and thereby be entrusted with ius puniendi, see Paola Gaeta, p. 321). Given the principle of nemo dat quod non habet, states could not authorize international courts something that they do not have. Moreover, such kind of argument might be a well-designed escape from states’ obligation to respect immunity. It means that when states are not allowed to arrest and try state officials of a foreign state, they could nevertheless choose to establish an ‘international court’ with other states, which can then request its states party to arrest officials of non-party states. As pointed out by Prof. William A. Schabas,

“if there is no immunity before any international criminal court […] would it be possible for Nauru, Monaco, Andorra, […] and the Palestinian Authority to join together and create an international criminal tribunal where the President of the United States would be stripped of the immunity he would otherwise possess before the national courts of those countries? ”

The reasoning of the Appeals Chamber even departed from some earlier decisions of the Pre-Trial Chamber of ICC. In the cases concerning Congo, Djibouti, and Uganda, the Pre-Trial Chamber II held that Article 27(2) of the Statute is only applicable to states party (See Congo case, para. 26), which, in other words, does not constitute customary international law. Similarly, in the cases concerning South Africa and Jordan, the Pre-Trial Chamber II further pointed out that it ‘is unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court’ (See South Africa case, para. 68). In these cases, the Pre-Trial Chamber solely resorted to the Security Council Avenue as the basis for not giving effect to the immunity of Sudanese President Bashir.

Horizontal Immunity

After removing vertical immunity, the Court continued to address horizontal immunity, i.e. the immunity of the head of a state of non-party from arrest by states party. In this regard, both approaches have similarly argued that, when requested by the Court, states party are merely the jurisdictional instruments of the international criminal jurisdiction, rather than exercising domestic criminal jurisdiction, and therefore no horizontal immunity is applicable here. For example, the Appeals Chamber notes that ‘the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of proper jurisdiction’ (Jordan Appeal case, para. 127). The four judges in this case have further pointed out in their Joint Concurring Opinion that ‘when State Parties cooperate with the Court, they should not be seen as exercising their own criminal jurisdiction, since they merely acting as jurisdictional surrogates of the ICC’ (Joint Concurring Opinion, para. 445; See also Malawi case, para. 46).

This argument that states party could merely be seen as ‘jurisdictional surrogates’ of the Court when they are requested to arrest and surrender suspects is debatable. Such a conclusion seems to render Article 98(1) meaningless. More broadly speaking, this question also relates to the nature of international legal obligations. It raises the question of whether states could be merely been seen as surrogates or instruments when they are fulfilling relevant obligations; or rather, this still to a certain degree reflects their sovereignty and jurisdiction concerning how to regulate matters within their own territory (See Antonio Cassese, p. 217-220).

Conclusion

As mentioned, though the Darfur situation was referred to ICC by a Security Council resolution, the Appeals Chamber still explored the Customary International Law Avenue. It seems that Customary International Law Avenue is meant to pave the way for future situations, especially those not referred to the Court by a Security Council resolution. As pointed out by Professor Claus Kreß, who was an amicus curiae in the Jordan Appeal Case, ‘[t]he Security Council avenue does not carry us very far if we look to the foreseeable future…only the customary law avenue allows the Court to exercise its limited jurisdiction over nationals of non- State[s] Parties in a manner that will not all too often spare the ringleaders…’ (Claus Kreß’s Submission, para.6). This seems to have come true in the case at hand where only the Customary International Law Avenue could be resorted to. On the basis of its own jurisprudence, it seems that the Court can request its states party to arrest and surrender Putin if he appears in their territory, and if states party refuse to do so, they would be held in violation of relevant obligations. That being said, the relevant reasoning of the ICC in this regard remains highly controversial, and the Putin case will put that jurisprudence to the test as we see how states react to it.