On Friday, 17 March 2023, the international community was astounded by the International Criminal Court (“ICC”) issuing arrest warrants against Vladimir Putin, President of the Russian Federation, and against Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the  President of the Russian Federation.  The officials are accused of being “allegedly responsible for [. . .] unlawful deportation of the population (children) and [. . .] unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation”.

Russia does not recognise the ICC’s jurisdiction and considers the very issue to be “outrageous and unacceptable”. Moreover, on 20 March 2023, the Russian Federation’s Investigative Committee opened a criminal case against the ICC prosecutor Karim Ahmad Khan, and several ICC judges involved in issuing the arrest warrants for “the prosecution of a person known to be innocent [. . .] as well as the preparation of an attack on a representative of a foreign state enjoying international protection”.

However, there is little more to those bogus criminal cases than Russia’s willingness to hinder the ICC fact-finding efforts.  Firstly, as ICC underlined, the arrest warrants were issued given the existence of “reasonable grounds to believe that each suspect bears responsibility” for the war crimes mentioned above. Secondly, the execution of the warrants is within the obligations of the State Parties to the Rome Statute to “cooperate fully with the Court” pursuant to the provisions of the Rome Statute and the national law procedures elaborated for all of the forms of cooperation thereunder. Acting both within the domestic and international legal framework can hardly be treated as an “attack”.

Although it may seem inevitable for a person suspected of committing war crimes to stand before the international court, the issue may not be that straightforward when it comes to the liability of the sitting Head of State where the immunities may apply in this case.

Article 27(2) of the Rome Statute provides that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. However, as the past shows the application of this rule in respect of the arrest and surrender of the state official enjoying the immunities was often not unobstructed.

For instance, one may recall the arrest warrants issued by the ICC against Sudan’s President Omar al-Bashir. In March 2017, Jordan, although being the State Party to the Rome Statute, refused to arrest and extradite Mr al-Bashir when he was in its territory due to his Head of State immunity. This omission resulted in Pre-Trial Chamber II’s decision of 11 December 2017, which found Jordan’s non-compliance with its obligations under the Rome Statute when “not executing the Court’s request for the arrest of Omar Al-Bashir and his surrender to the Court”. Jordan appealed against this decision and on 6 May 2019 the ICC Appeals Chamber delivered its judgment in this case, laying out remarkable conclusions regarding immunity of Heads of States under customary international law.

The Appeals Chamber confirmedthat there was no rule of customary international law recognising the Head of State immunity “vis-à-vis international courts” as well as in “the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State”. According to the Appeals Chamber, Article 27(2) of the Rome Statute shall be read “both as a matter of conventional law and as reflecting customary international law, as also excluding reliance on immunity in relation to a Head of State’s arrest and surrender”.

In developing the reasoning for such findings, the Appeals Chamber held among others that, unlike the domestic courts, which are “essentially an expression of a State’s sovereign power”, the international courts “act on behalf of the international community as a whole” and thus the principle of limiting the sovereign powers of one State over the other “finds no application in relation to an international court”.

Another important finding of the Appeals Chamber in the al Bashir case related to the State Party’s difficulties in performing the ICC’s request for cooperation pursuant to Article 98(1) of the Rome Statute. Specifically, if the State Party “considers that the Court erroneously asked for cooperation, contrary to article 98(1)”, it may not “unilaterally decide not to execute a request for arrest and surrender”, but rather “has to seek consultations with the Court” as prescribed by Article 97 of the Rome Statute.

Such conclusions are vital in the case of Russia, which is not the State Party to the Rome Statute, and thus may attempt to invoke the Head of State immunity if (or when) the accused persons may be facing arrest and extradition to be brought before the ICC. However, there should be no doubt that the warrant will be enforced sooner or later as although the wheels of justice may grind slowly, but they grind exceeding small.

By Hanna Marunych