By Charles H. Camp and Sophia Herbst
On March 17, 2023, the International Criminal Court (“ICC”), which was created by the United Nations pursuant to the Rome Statute,[1] issued an arrest warrant for Russian President Vladimir Putin, who has no head of state immunity from arrest.[2] The warrant is intended to be more than symbolic and raises critical concerns regarding United Nations member states’ legal duty to arrest Putin. For states that are members of the ICC, their duty to arrest Putin is set forth in the Rome Statute. For states that are not members of the ICC, they have a legal and moral duty to cooperate and protect under the United Nations Charter and international law – the same obligations supporting all states’ Responsibility to Protect.[3] Should states ignore their international law responsibilities to cooperate, the ICC’s effectiveness as an international court created by the United Nations for the protection of the world will be at stake.
The ICC’s Authority and its Link to the UN
The ICC, established when the Rome Statute entered into force in 2002, has jurisdiction over prosecuting individuals – not states – for genocide, crimes against humanity, war crimes, and the crime of aggression.
Though independent, the ICC maintains a formal relationship with the UN via the Negotiated Relationship Agreement.[4] This agreement enables cooperation in areas including peacekeeping, evidence sharing, and witness protection.
The UN Security Council (UNSC) can refer cases to the ICC, including involving non-member states, as it did in response to Darfur, Sudan in 2005 and Libya in 2011. However, the ICC faces persistent challenges in enforcing its decisions, especially when involving sitting heads of state.
The ICC’s Power to Issue Arrest Warrants and State Compliance Obligations
Under Article 58 of the Statute, the ICC can issue warrants when reasonable grounds exist to believe that an individual has committed a crime within its jurisdiction. Once a warrant is issued, Articles 59, 86, and 89 obligate member states to arrest and surrender the individual.
The case of Sudanese President Omar al-Bashir is noteworthy when considering these obligations. In 2009 and 2010, the ICC issued warrants against al-Bashir for genocide, war crimes, and crimes against humanity. Despite these warrants, al-Bashir traveled to ICC member states, including South Africa in 2015, without arrest. In its defense, South Africa argued that al-Bashir, as a sitting president, enjoyed immunity under customary international law.
The ICC rejected this defense. In its 2017 decision, the Pre-Trial Chamber II found South Africa non-compliant under Rome Statute Article 87(7), triggered when a state fails to comply with the Court’s request to cooperate and the non-compliance obstructs the Court’s proper function.[5] While the ICC did not refer South Africa to the Assembly of States Parties or the UNSC, this was based in part on South Africa’s status as first to seek legal clarity from the Court regarding states’ obligations to arrest al-Bashir. As a result, member states who fail to comply with their obligation to enforce after this ruling should not expect the same leniency.
Case in point: the ICC’s October 2024 finding of Mongolia’s non-compliance with the warrant against President Putin and referral to the Assembly of States Parties.[6] In the case of Putin’s warrant, the ICC has previously clarified that no personal immunity applies to heads of state, including non-members, in relation to ICC warrants.
Putin’s Arrest Warrant: Legal and Political Implications
Russia, not a party to the Rome Statute, has rejected the ICC’s jurisdiction and dismissed the warrant as illegitimate. Nevertheless, ICC member states have a legal obligation to arrest Putin if he enters their territory.
Putin’s travels will place any host states at risk of violating the Rome Statute if they fail to arrest and surrender him. The Court’s finding of non-compliance by Mongolia illustrates the stakes for ICC member states, as they risk legal consequences for non-compliance under Article 87(7) of the Statute. Importantly, the ICC itself made clear in the Mongolia case that[7], [A]rticle 27 of the Statute has the effect of removing any and all international law immunities of officials, including Heads of State, and binds to that effect States Parties, as well as States that have accepted the Court’s jurisdiction, not to recognise any kind of immunity or apply special procedural rules that they may attach to any persons. Whether these persons are nationals of States Parties or nationals of non-States Parties is irrelevant. The Statute, in any case, does not make any distinction in this regard. States Parties and States that have accepted the Court’s jurisdiction have therefore the obligation to arrest and surrender any person for whom the Court has issued a warrant of arrest, irrespective of their official capacity and nationality. The obligation to arrest and surrender is one of the means to ‘give effect’ to the obligation to cooperate with the Court in the execution of its mandate.
Moreover, the ICC has held that[8] Article 34 of the Vienna Convention on the Law of Treaties, providing that the concept that “[a] treaty does not create either obligations or rights for a third State without its consent,”
is irrelevant to the matter at hand, since the Court is not aiming to impose obligations contained in the Statute to non-States Parties, but is rather seeking the cooperation of States Parties in cases against individuals who allegedly committed crimes under article 5 of the Statute on the territory of a State where the Court has jurisdiction.
The US and Other Non-ICC Member States Have an Obligation to Cooperate with the ICC
While non-member states of the ICC, like the United States, are not legally bound by the Rome Statute, they are, as members of the UN, bound by broader obligations under the UN Charter to uphold international peace and security, a concept reinforced through the “responsibility to protect” principle.[9]
As the UN describes it, the principle creates an affirmative responsibility for states to protect their populations and a “residual responsibility” to act when a state fails to protect its population or commits such crimes itself.[10] This principle can arguably be extrapolated to imply an obligation on all UN member states to assist in the enforcement of ICC decisions related to findings of “crimes and atrocities”, as such actions are consistent with international law and the UN Charter.[11]
Ramifications of Non-Compliance with International Obligations
The ICC itself has no enforcement mechanism. It relies entirely on states’ cooperation to enforce its decisions. Non-compliance weakens the Court’s ability to enforce international criminal law and hold accountable individuals charged with crimes serious enough to trigger the ICC’s findings. While Putin’s arrest warrant is not the first issued by the ICC that is yet to be enforced, it represents a crucial test of the international community’s commitment to the enforcement of international criminal law regardless of the official standing of the accused.
As previously highlighted in the context of the International Court of Justice[12], judgments by international courts must be enforceable to maintain relevance and provide justice to victims. If ICC arrest warrants are disregarded, especially by ICC member states, the Court risks becoming symbolic, without real-world accountability for its findings. Non-ICC member states, though not obligated through the Rome Statute, have an obligation, consistent with the Responsibility to Protect, to execute the outstanding arrest warrant against Putin.
Conclusion
The ICC depends on states to honor their legal and political obligations. Without state cooperation, including the execution of arrest warrants, the ICC’s ability to deliver justice is severely compromised.
The arrest warrant for Vladimir Putin will remain active unless withdrawn by the ICC itself. Whether it is next year or in the decades to come, the question of enforcing accountability for crimes and atrocities will persist until the day, if ever, Putin is arrested and surrendered to the Court for trial.
Consistent with the UN’s ultimate goals of international peace and cooperation, all UN member states, whether or not they are members of the ICC, have an international obligation to cooperate with the ICC for the benefit of all mankind, consistent with the Responsibility to Protect.
About the Authors
Charles H. Camp is an international lawyer with over 30 years of experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. In 2001, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in Washington, D.C. to focus on effective, personalized representation in complex, international matters. Mr. Camp teaches International Negotiations at the George Washington University Law School.
Sophia Herbst, a former Associate of Mr. Camp’s firm, is an Adjunct Professor at the George Washington University Law School with a focus on international commercial and investor-state arbitration. Ms. Herbst also practices in commercial litigation and alternative dispute resolution.
References
[1] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), ISBN No. 92-9227-227-6, UN General Assembly, 17 July 1998, https://www.refworld.org/legal/constinstr/unga/1998/en/64553 [accessed 14 March 2025].
The Rome Statute was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. This version of the Statute incorporates changes made to it by the procés-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The statute entered into force on 1 July 2002.
[2] Rome Statute, Article 27 (“a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute …”) discussed at length at: https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809d1971.pdf.
[3]The Responsibility to Protect is a global political commitment, endorsed by the UN, that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and, if they fail, the international community has a responsibility to act. See also
[4] The International Criminal Court and the United Nations, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, UN Doc. A/58/874, 20 August 2004, https://www.un.org/sites/www.un.org.ola/files/documents/2018/10/un-icc-relationship-agreement.pdf [accessed 14 March 2025].
[5] The Prosecutor v. Omar Hassan Ahmad Al-Bashir, (Decision) ICC-02/05-01/09 (6 July 2017) https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2017_04402.PDF [accessed 14 March 2025].
[6] Situation in Ukraine (Decision) ICC-01/22 (24 October 2024) https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809d1971.pdf [accessed 14 March 2025].
[7] www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd1809d1971.pdf.
[8] Id.
[9] United Nations General Assembly, Resolution [A/RES/60/1] 2005 World Summit Outcome (24 October 2005).
[10] United Nations Office on Genocide Prevention and the Responsibility to Protect, https://www.un.org/en/genocide-prevention/responsibility-protect/about (accessed 14 March 2025).
[11] Id.
[12]https://worldfinancialreview.com/judgments-issued-by-the-international-court-of-justice-against-states-violating-the-genocide-convention-must-be-enforceable-by-states-on-behalf-of-victims-of-genocide-otherwise-what-is-the-relevance/
