Judicial Independence Under Threat: Russia’s Conviction in absentia of Nine International Criminal Court Officials

On 12 December 2025, the Moscow City Court convicted nine International Criminal Court (ICC) officials in absentia for crimes relating to the unlawful prosecution of Russian citizens. These individuals were prosecuted in retaliation for the issuance of ICC arrest warrants against several Russian nationals, including President Vladimir Putin. A group of UN experts promptly declared the convictions ‘null and void’ under international law, and characterised the trial as ‘an unprecedented attempt to criminalise the exercise of independent judicial and prosecutorial functions of an international court.’

This post intends to examine whether those experts’ assertions about the invalidity of the judgment under international law is accurate. It will do this by examining some of the claims made by those experts to support their assertions, with a particular emphasis on whether  ICC judges and court officials enjoy immunity from prosecution for their official acts. It will also consider whether the Moscow City Court had a valid jurisdictional basis for conducting the trial. Finally, it will discuss the legitimacy of trying the nine ICC officials in absentia and whether it was done in compliance with international law. It concludes that while the Russian judgment against the nine ICC officials is illegitimate, it is not for the reasons identified by the UN experts.

Assertion of immunity

In the statement issued by the UN experts condemning the prosecutions, they specifically indicate that the nine ICC officials are entitled to immunity from prosecution for acts committed in their official capacity. Their basis for this assertion of immunity is the ICC’s foundational text, the Rome Statute. However, Russia is not a state party to the Rome Statute, and Article 34 of the Vienna Convention on the Law of Treaties is famously quite clear that a treaty does not create obligations for third states without their consent. While the application of the jurisdictional provisions of the Rome Statute to citizens of non-state parties has long been a point of contention, that debate cannot be extended here to suggest that Russia is subject to the Rome Statute’s provisions on immunity. The Statute’s language imposes an obligation on states and the VCLT prevents that from being extended to non-state parties.

Even if Russia were somehow bound by the Rome Statute’s immunity provisions, the specific terms of Article 48(2) of the Rome Statute make it unlikely that they would apply in this case. Article 48(2) grants ICC judges, the chief prosecutor, deputy prosecutors, and the registrar the same immunities afforded to heads of diplomatic missions. The immunities of heads of diplomatic missions are set out in the 1961 Vienna Convention on Diplomatic Relations (VCDR), which states that they are immune from criminal prosecution in the state in which they are working.

The decision to bring the immunities owed to ICC officials in line with those described in the VCDR was first taken by the International Law Commission (ILC) in its 1994 Draft Statute for an International Criminal Court. There, it suggested that ICC officials should enjoy the privileges and immunities of a diplomatic agent as defined in the VCDR, a term which also includes heads of missions. While the specific reference to the VCDR was dropped from the final version of the Rome Statute, the spirit of it was retained through the inclusion of the heads of diplomatic missions terminology.   

The difficulty with relying on Article 48(2) of the Rome State and the VCDR in this case is that the acts the ICC officials were convicted of occurred in The Hague and not in Moscow. The wording of the VCDR suggests that diplomatic immunity applies in the receiving state, i.e the state upon whose territory the diplomatic mission is authorised to operate. Here, where the ICC officials have not travelled to Russia, it is unlikely it can be considered a receiving state for VCDR purposes. As a result, even if Russia were bound by the immunities provisions of the Rome Statute, they would not be applicable in this instance.

Jurisdictional basis for prosecution

It is axiomatic that for a court to legally prosecute an individual it must have jurisdiction to do so. However, the Moscow City Court did not explain the basis for its jurisdiction in this matter, leaving open the question about whether it was legally authorised to prosecute the nine ICC officials. There are several types of jurisdiction under international law upon which the prosecution may have been based. The most common of these, territorial jurisdiction, allows a state to investigate and prosecute crimes occurring within the territory of the state. This however, would appear not to form the basis for the prosecution of the ICC officials, as the court itself acknowledged that the allegedly criminal acts were committed in The Hague, and not Russia.

It is possible that territorial jurisdiction could be justified on the basis that the crime took place in more than one location, having commenced in The Hague with the issuance of the arrest warrants, while being completed in Moscow through some impact experienced there by the subject of those arrest warrants. That approach would accord with the Criminal Procedure Code of the Russian Federation, which indicates that should a crime occur in more than one place, jurisdiction rests with the courts in the place in which the crime was completed. However, that approach is undermined by the fact that it does not appear that any part of the crime took place in Russia. Perhaps the individuals under ICC arrest warrants might argue that their inability to travel to the territory of ICC member states due to a fear of arrest constitutes an effect of the crime that they are experiencing in Moscow. However, it is not the act of departing Moscow, but rather the consequence of arriving in a state party, that triggers that limitation, suggesting that the effect is really experienced somewhere other than Russia.

International law also recognises several jurisdiction principles relating to nationality. The first of these, the active personality principle, permits a state to prosecute its citizens for crimes they are alleged to have committed, regardless of where those crimes occurred. This obviously would not apply here as none of the convicted ICC officials are Russian nationals.  A second, the passive personality principle of jurisdiction, permits courts to conduct prosecutions where the alleged crimes occurred outside of the territory of the prosecuting state, but where the victims of the alleged crimes are nationals of that state. This could provide a valid basis for the Moscow Court’s prosecution, as the individuals subject to the ICC arrest warrants at the heart of this case are Russian citizens. However, passive personality jurisdiction is amongst the most controversial forms of jurisdiction, and it is not recognised by many states, including Russia. Further, those states that do permit passive personality prosecutions typically limit its application to particularly serious crimes, like acts of terrorism or the assassination of diplomatic officials. The crime of unlawful prosecution lacks the sort of severity typical of the sort of crimes usually associated with the passive personality principle.

The protective principle of jurisdiction might also provide a foundation for the prosecution conducted by the Moscow Court. It allows a court to prosecute crimes that are against the interests of the state, even where they occurred outside of the state’s territory and were allegedly committed by non-citizens. While the types of crimes to which this principle is applicable were once quite limited, many states now believe it covers conduct that threatens state security or the operation of the government. That could certainly apply in this case, as the Moscow Court’s decision suggests that the issuance of the ICC arrest warrants against President Vladimir Putin could result in his being attacked. Unfortunately, the decision does not elaborate on that supposition, or provide any evidence supporting their conclusion, making it difficult to evaluate that jurisdiction properly rested on the protective principle.

Universal jurisdiction is the final basis upon which jurisdiction in the case against the nine ICC officials might be founded. Universal jurisdiction is predicated on the idea that there are certain actions that the international community as a whole has an interest in regulating but for which none of the more traditional modes of jurisdiction are available. It typically applies only to serious international crimes, including: piracy, slavery, war crimes, (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture. While this is not necessarily a closed list, any additional crimes would likely need to be of similar severity to be subject to universal jurisdiction. It is highly unlikely that unlawful prosecution would meet that standard.

Fair trial rights

A final issue to consider is whether the trial against the nine ICC officials was held in accordance with international human rights standards. While there is little public information about how the proceedings were conducted, two immediate issues stand out, suggesting that the trial likely fell below acceptable international standards. In particular, the nine officials were tried in absentia, and there is no real reason to believe that they were given the opportunity to appear during trial or effectively prepare their defences.

The right to be present at trial is a qualified right held by the defendant under numerous international legal instruments, including Article 14 of the International Covenant on Civil and Political Rights (ICCPR). It stands for the proposition that trial cannot proceed in the accused’s absence, unless they have notice of the proceedings and have voluntarily waived their right to appear. Notice can be actual or constructive, but it must be effective. The purpose of the notice requirement is to ensure that the accused has the opportunity to appear during the trial should they so wish.

In this case, the UN Experts’ statement about the judgment’s invalidity suggests that the nine ICC officials did not receive notice of the case pending against them. It can be extrapolated from this that they were never formally served with information about the charges or the date and location of trial, although this somewhat leaves open the possibility that they may have received constructive notice, through indirect means. The ICC and the Special Tribunal for Lebanon have both found that for constructive notice to be effective, information about the charges and the date and location of trial must be publicised in ways that are ‘widespread’, so that the accused would find that information practically inescapable. Further, while the European Court of Human Rights has been somewhat less specific about the extent to which the notice must be spread, it has found that it cannot be based on vague or informal knowledge. Here, there is no indication that the accused had notice sufficient to allow them to exercise their right to be present. Without that notice, they cannot be construed to have waived that right, and therefore any trial in absentia held against them would be ineffective.

The Russian Investigative Committee released an announcement on 14 November 2025 accusing the nine officials of the illegal prosecution of Russian citizens. While it did identify which sections of the Russian Criminal Code the officials were charged under, it does not indicate the date or location of trial, making it functionally impossible for the accused to appear. Further, the announcement received relatively little international media attention, and there is no record of the Russian government having made any concerted effort to ensure that the accused were informed. Further, neither the ICC nor the nine officials have ever made any official statement suggesting an awareness of the charges or the resulting verdict against them. This falls well below the standard required to prove constructive notice indicating that the nine ICC officials’ right to be present at trial was almost certainly violated.

Conclusion 

While it is clearly true that the prosecution and conviction of the nine ICC officials by the Moscow City Court is unlawful under international law, it is not for the reasons identified by the UN experts who condemned the court’s actions. The applicability of diplomatic immunity is highly questionable in this case, despite the assertion to the contrary of the UN experts. Instead, a lack of jurisdiction, and violations of the accused’s right to be present at trial, form a much stronger legal basis for the international repudiation of the Moscow City Court’s decision. However, regardless of the reasons relied upon, what is necessary is for the international community to come together and with full voice defend judicial independence by rejecting these clearly illegal convictions. The continued health of international courts and the rule of law depends on it.