Arash Malki ـ PhD Candidate in Public International Law at the University of Qom
2024/10/19

Over the past two years, many international law professors have been challenged by their students in the classrooms on the effectiveness of international law in such a chaotic world. The conflict in the Middle East and major human rights violations across the globe strengthen the Spinoza quote that “power prevails over the law”. (here), (here), (here), and (here) It is an argument that has mostly been replied to by counting achievements over failures in the legal paradigm. Yet, maintaining international peace and security and promoting respect for human rights remains the main purpose of international law. (here) Another situation that proves international law has not yet reached the reliable stage is the RussoـUkrainian armed conflict. An invasion began in February 2022, when Russia launched a full-scale attack against the territorial integrity of Ukraine upon false claims, (here) causing death and injury for thousands and forced displacement for millions of Ukrainian civilians. (here) Vladimir Putin, the President of Russia justified the attack by portraying a posed threat from Ukraine's NATO membership status, (here) while the real motive was how a democratic and independent neighboring state could enlighten the Russian people and threaten his autocracy. (here)

In response to this situation, the United Nations Security Council which is primarily responsible for international peace and security tried to institute an action, but Article 27(3) of the UN Charter defused every attempt. (here) The one last resort was the International Criminal Court (ICC). A permanent institution of criminal justice established to end impunity on a global scale, with its jurisdiction covering genocide, crimes against humanity, war crimes, and crime of aggression. On March 17th, 2023, the ICC recognized the unlawful deportation of the population from occupied areas of Ukraine to Russia and issued an arrest warrant for Putin and one member of his administration based on reasonable grounds. (here) Under this circumstance, every ICC member state is obliged to arrest and surrender Putin following Articles 58, 86, and 89 of the Rome Statute. (here) Within the past eighteen months, Putin has docked traveling to territories that fall under ICC’s jurisdiction. Even his presence at the BRICS summit was virtual since South Africa is a member of the ICC Statute. (here and here) But an official visit on September 3rd, 2024 marked a significant point in the history of compliance with the ICC mandates. Putin traveled to Mongolia, an ICC member, without any consequences. (here)

Before this visit, many requests have been made to arrest the suspect. (here) But all remained ineffective. Many blame the economic ties the country has with Russia. (here) Some others mentioned Russia’s military power and nuclear warheads that protect the President, in a form that no country dares to apply the arrest warrant. (here) Three questions arise from this situation: What is the legal consequence of undermining an ICC arrest warrant for a member state? How does this neglect affect the ICC’s reputation? And will at a certain point handcuffs wrap around Putin's hands?

To address the first question, we shall take a close look at ICC’s Statute. Unlike the UN Charter, no provision for expulsion is mentioned within the Statute. Thus, under Article 119(2), member states shall settle their disputes on the application of the statute through negotiation. If the dispute still existed after three months, it will go to the Assembly of States Parties. The Assembly may itself settle the dispute or recommend further means, including referral to the International Court of Justice (ICJ). Now due to above mentioned noncompliance, Ukraine promised Mongolia, consequences. (here) But since the country is no ICC member yet, invoking Article 119(1) by Ukraine is not an option. Another vocal critic of Mongolia’s negligence is the European Union which also we cannot expect an action from since it’s not a state, let alone an ICC member. (here) On the bright side, every EU member is an ICC member as well. (here) Therefore, forming a coalition among EU states to hold Mongolia accountable is very likely to happen. Worth mentioning that some experts pointed out that a failure by a state to comply with a request to cooperate is considered to be a “dispute” within this Article. In addition, the “ICJ referral” could be a contentious case or an advisory opinion in different scenarios. (here) With this regard, putting Mongolia aside, other member states are in a position to start a dispute settlement process. That means a legal response is highly imaginable.

About question two, bearing a realistic point of view comes pretty handy. ICC’s mission is not an all-or-none game. Expecting a perfect success from an institution that challenges state sovereignties and goes after their officials is not pragmatic. It shall make effort within its full capacity to implement justice. A procedure that simultaneously contains failures and accomplishments. What matters, is the accomplishments shall always override failures. In this case, the court has already scored pretty good records. (here)

Answering question three, I would say maybe or maybe not. That depends on the whole world’s tolerance on the criminal acts. No one can conquer the entire world. If someday the free world concludes that someone is an immediate existential threat, every means ـ including the arrest warrant ـ would be an option. Until then, such an incident seems far to reach.

Regarding its principal mission to end impunity, it is important for the ICC that all those accused of international crimes get arrested, or at least boycotted among its members. Accordingly, a strong judicial diplomacy among member states is required to isolate those who challenge the core international values. The institution is very young and still in his early stages. Deliberate weakening won't benefit any one, members and non-members. The international criminal justice system is something shall be preserved and strengthened.

 

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