Rome, Geneva, Budapest or … – Which venue for a possible meeting of Presidents Trump, Zelensky and Putin and the possible role of Art. 16 of the Rome Statute?

“When shall we three meet again in thunder, lightning, or in rain?

When the hurlyburly’s done, When the battle’s lost and won.”

Macbeth, Witches, Act I, Scene I.

Introduction

After the recent meeting of US-President Trump with Russian President Putin, and the ensuing meeting of President Trump with Ukrainian President Zelensky and various European leaders, a meeting between President Zelensky and President Putin is currently debated with various possible ideas for venues for such a meeting having been floated including, but not limited, to Rome, Geneva and Budapest.

Yet, to state the obvious, Russian President Putin is subject to an arrest warrant issued by the International Criminal Court for “[a]llegedly [being] responsible 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 (under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute) (…) committed in Ukrainian occupied territory at least from 24 February 2022.” Hence, as was confirmed by the ICC’s Pre-Trial Chamber II decision of 24 October 2024 (see on that decision also the comment here), and in line with the jurisprudence of the ICC’s Appeals Chamber concerning (then) Sudanese President Al Bashir, State parties of the Rome Statute are under a general obligation to act in accordance with the aforesaid arrest warrant, thereby fulfilling their obligation to, should the situation arise, cooperate with the ICC in line with Article 89(1) and with Article 92(1) of the Rome Statute.

Currently, inter alia Rome, Geneva and Budapest have been ventilated as possible venues for a possible trilateral meeting between Presidents Trump, Zelensky and Putin. However, Italy, Switzerland, and (still) Hungary are contracting parties to the Rome Statute and thus are, at least as a matter of principle and subject to the issues discussed below, under an obligation to arrest Russian President Putin should he set foot on Italian, Swiss or Hungarian soil. This situation raises particular issues as far as Hungary and Switzerland are concerned, but also more general issues in relation to other contracting parties of the Rome Statute, such as Italy, as possible host States for the envisaged meeting.

Budapest as a possible venue?

Hungary has notified the depositary of the Rome Statute, the United Nations Secretary General, on 2 June, 2025 of its withdrawal from the Rome Statute. Yet, as the Secretary General rightly confirmed in its depositary notification , said “action shall [only] take effect for Hungary on 2 June 2026 in accordance with Article 127(1) [Rome Statute]” which reads as follows:

“A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”

Put otherwise, Hungary remains a State party of the Rome Statute until mid-2026. What is more is that, as unequivocally confirmed by Article 127(2) Rome Statute, such withdrawal

“(…) shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

This has been confirmed concerning State parties that had indicated their decision to withdraw from the Rome Statute in decisions of Pre-Trial Chambers II and I, respectively with regard to Burundi (paras. 24-26) and Hungary (para. 14).

Accordingly, there can be no doubt, should Budapest be chosen as a possible venue for a meeting including Russian President Putin, the obligation to cooperate with the ICC and the obligation to arrest Russian President Putin would be triggered. What is more is that any proceedings concerning a possible non-cooperation by Hungary in the arrest of President Putin prior to 2 June 2026 could continue even after that date, i.e. after Hungary’s withdrawal has become effective.

The obligation to cooperate and enforce an arrest warrant issued by the ICC includes, in line with the so far uniform practice of both various Pre Trial Chambers and the Appeals Chamber, the obligation to arrest an incumbent Head of State or Head of Government. Specifically concerning Hungary, it is noteworthy that the ICC’s Pre-Trial Chamber I on 24 July 2025 has confirmed that Hungary failed to comply with its international obligations under the Statute by not executing the Court’s request to provisionally arrest Israeli Prime Minister Netanyahu while he was present on Hungarian territory between 3 and 6 April 2025, i.e. in a situation that would be analogous to a visit of Russian President Putin in Hungary.

Geneva as a possible venue?

As far as Geneva as a possible venue is concerned one might have to however take into account the ‘Agreement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the Secretary General of the United Nations’ of 19 April 1946. As a matter of fact, Swiss Minister of Foreign Affairs Federal Councilor Ignazio Cassis recently claimed that, should President Putin attend negotiations in Geneva, Switzerland could grant him immunity (see a video of his statement here, in German). Yet, it remains unclear what the legal basis for such immunity would be.

It is true that Article IV, Section 9, lit. a) of the above-mentioned Agreement provides that Switzerland is obliged to grant immunity from personal arrest or detention to “Representatives of Members of the United Nations on its principal and subsidiary organs and at conferences convened by the United Nations (…) while exercising their functions and during their journey to and from the place of meeting”. Yet, any such negotiations related to the war in Ukraine, unless convened by the United Nations themselves, would not be covered by the Agreement. It thus stands to reason that any such meeting not convened by the United Nations, would not fall within the scope of Art. 105(2) UN Charter. Accordingly, granting such immunities would neither prevail against the obligations to cooperate with the ICC arising under the Rome Statute in line with Article 103 UN Charter, nor indeed fall within the scope of Article 98(2) Rome Statute.

In any event, one would have to also consider Article 19 of the ‘Relationship Agreement between the International Criminal Court and the United Nations’ dealing with United Nations privileges and immunities. This provision requires the United Nations to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any privileges and immunities even for persons covered by the Convention on the Privileges and Immunities of the United Nations and other relevant rules of international law, rules which arguably include the above-mentioned 1946 Agreement between the UN and Switzerland. Hence, even if one were to assume arguendo that President Putin would enjoy immunity under the Convention on the Privileges and Immunities of the United Nations and/or the 1946 Agreement concluded between Switzerland and the United Nations, the Organization would then be under an obligation to waive any such immunity.

Action by the Court itself?

This then raises the question whether the Court itself could not take action in order to enable the envisaged meeting without the host State being obliged to arrest and surrender President Putin. Under Article 58(4) Rome Statute any “warrant of arrest shall [however] remain in effect until otherwise ordered by the Court.” Accordingly, it would be for the Pre Trial Chamber itself that has issued the arrest warrant against President Putin to eventually lift it. It is less clear whether the Pre Trial Chamber is in a position to ‘suspend’ an arrest warrant in order to enable possible peace negotiations since this would encroach upon the prerogatives of the Security Council under Article 16 Rome Statute.

In any case, it would not be for the OTP to take action in ‘suspending’ the enforcement of the arrest warrant in question ‘in the interests of justice’ under Article 53 (1) lit c) or under Article 53 (2) lit c. of the Rome Statute. As a matter of fact, as the OTP’s Policy Paper on the Interests of Justice, at p. 2 rightly puts it, “Article 53(1) of the Statute [only] addresses the initiation of an investigation”, while “Article 53(2) addresses the initiation of a prosecution”. Neither of the two provisions therefore deal with the complete lifting or a more limited ‘suspension’ of an arrest warrant already issued by a Pre Trial Chamber by the OTP. At most, the OTP might request a lifting of such arrest warrant by the Pre Trial Chamber concerned. In any event, any such steps would take significant time, and, besides, would also require the involvement of the 43 States that have referred the situation in Ukraine to the ICC given the idea underlying Article 53(3) Rome Statute and the vested interest those States have in the continuation of the proceedings. Art. 16 Rome Statute as the way out?

The States involved in the envisaged meeting, i.e. the United States, Ukraine and the Russian Federation, might therefore prefer to opt for a meeting to take place in the territory of a State not party of the Rome Statute, such as Turkey or the United Arab Emirates, States which are obviously not obliged to enforce the arrest warrant issued by the ICC. Should nevertheless a venue located on the territory of a State party of the Rome Statute be considered, Article 16 Rome Statute that could pave the way for such possibility.

As is well-known Article 16 Rome Statute provides for the possibility of the Security Council, acting under Chapter VII of the Charter of the United Nations, to defer an investigation or prosecution for a period of 12 months. While, as was rightly noted by Bersgmo/Zhu (Art. 16, marginal note 22), the actual text of Art. 16 Rome Statute “(…) suggests that the Council’s deferral request must pertain to the time period specified, [i.e. 12 months] (…) the Council may of course (sic!) decide that the period may be shorter” on the basis of an argumentum a majore ad minus. In the case at hand, it would indeed make sense for the Security Council, should it have to deal with the matter, to consider limiting such deferral for the period of the envisaged negotiations in order to thereby implicitly confirm the otherwise continued validity of the arrest warrant.

As a matter of fact, an invocation of Article 16 Rome Statute by the Security Council could imply, depending on the specific wording of the resolution, a recognition by the Security Council of the power of the ICC to exercise jurisdiction vis-à-vis third party nationals and the lack of personal immunity of members of the troika when it comes to ICC proceedings. Any such implicit recognition of the underlying premises of the extent of the ICC’s jurisdiction, as enshrined in Articles 12 (2) lit. a) and 27 of the Rome Statute would indeed run counter to the legal positions notably taken by the current US administration, even if the previous Biden administration had welcomed the ICC proceedings against President Putin. Much would thus eventually depend, should such deferral have a chance to pass in the Security Council and not be subject to one or more vetoes, on the ability of the members of the Council to come up with creative drafting that would avoid language that could be understood in such a manner.

On the other hand, those nine (permanent and non-permanent) members of the Security Council that are parties of the Rome Statute – namely France, the United Kingdom, Denmark, Greece, Guyana, Panama, the Republic of Korea, Sierra Leone and Slovenia – should avoid any impression of condoning or approving in any way a meeting involving a person subject to an arrest warrant of the ICC to take place in the territory of a contracting party unless the Security Council has taken specific action under Article 16 of the Rome Statute.

As a matter of fact, it is exactly for such situations that Article 16 of the Rome Statute was drafted and, as the OTP’s Policy Paper on the Interests of Justice, at p. 8, rightly puts it, Article 16 “(…) recognizes a role for the UN Security Council to defer ICC action where it considers it necessary for the maintenance of international peace and security”, and be it only to eventually provide for an appropriate venue for peace negotiations.

Conclusion

It is a banality that the ICC has no enforcement powers of its own. It rather depends on its contracting parties. The only soft power the Court has at its disposal is the quality of its judicial pronouncements. It is thus even more important that the Court’s decisions be meticulously guided by legal considerations, and by such considerations only, rather than by political considerations that may over time undermine its credibility.