This year, the International Criminal Court (ICC) issued an arrest warrant against the President and the Commissioner for Children’s Rights of Russia for individual responsibility for alleged war crimes, stirring much debate on the enforcement of ICC arrest warrants.
This warrant, issued under Article 58 of the Rome Statute, means that the Russian Officials are accused of war crimes and are subject to arrest if they travel to a State party of the Statute. However, such an arrest is unlikely due to a variety of legal bottlenecks, political implications and practical challenges.
Firstly, the Rome Statute has been drafted to limit breaches of State sovereignty. The Court is not empowered to enforce action on its own without the relevant State’s cooperation (Article 103). The obligation of executing arrest warrants is placed upon the 123 State parties, which the ICC is entirely relying on. Non-State parties and other international institutions are not obliged to cooperate with any request for arrest and surrender by the ICC. That is unless it is based on an ad hoc agreement, arrangement or other basis such as a Security Council resolution. Moreover, the ICC does not possess police power or prison facilities and is completely reliant on local law enforcement of State parties to implement arrest warrants.
In the case of Russia and Ukraine, neither are parties to the Rome Statute, creating significant challenges in issuing or enforcing a warrant against Russia’s Head of State. Although Article 13(b) enables the United Nations Security Council to refer matters involving non-State parties to the ICC, such a resolution could not be adopted as Russia, being a permanent member of the Security Council, holds veto power. Therefore, the warrants were issued following Articles 13(c) and 15 of the Statute on an application by the Prosecutor based on evidence collected and analysed by the Office of the Prosecutor.
When considering the warrant against Russia’s President, its enforcement is unlikely because he can only be arrested if he travels to a State party which is willing to arrest him, and he is unlikely to expose himself to such a risk. Past encounters involving the former Sudanese President, where States refused to arrest him, demonstrate the reluctance of many countries to arrest a sitting Head of State, even when they are legally duty-bound to do so under Article 89(1) of the Rome Statute.
Secondly, the political implications on bilateral relations between an arresting State and the implicated State is another challenge. Developing States are particularly reluctant to submit to such requests by the ICC because they depend on economic and other assistance from other States – implementing warrants issued against powerful States will result in serious political repercussions including the possible loss of foreign assistance.
In the present case, it becomes apparent that the implications are magnified as Russia is a superpower in international politics and possesses nuclear arms. Russia has already commenced a criminal case against the ICC Prosecutor and Judges involved in issuing the warrant, issued threats of attacking The Hague (with missiles), and warned that any country arresting President Putin would amount to a “declaration of war”. Accordingly, military pressure and the threat of political and economic sanctions prevent smaller States from enforcing warrants against individuals from powerful States.
The ICC thus lacks tools to ensure State cooperation, and it does not have a mechanism to deal with non-compliance, nor the means to provide minimum protections to vulnerable State parties when executing ICC arrest warrants against powerful States. Article 87(7) of the Statute provides for the ICC to refer matters to the Assembly of States Parties or the Security Council when a State Party does not comply with a request to cooperate. This serves as a remedy of some sort, but has, in the past, failed to achieve cooperation from the States concerned.
The lack of an enforcement mechanism and the power imbalance among States hinder efforts at ensuring international accountability, especially now when a warrant against a permanent member of the Security Council has been issued for the first time. Moving forward, the ICC must develop an internal mechanism that reduces its dependence on individual States for effective functioning.