Back to the Drawing Table!

It is fairly generally accepted amongst ICL-scholars that the success of the International Criminal Court (ICC) after being some 20 years in operation is not to be merely gauged by the number of its convictions. As it is well-known, the ICC’s first Prosecutor, Luis Moreno Ocampo, even contended that the absence of any judgment by the Court would not indicate that the Court had failed its mission. After all, it might just imply that national jurisdictions had complied with their primary responsibility to genuinely prosecute and try suspects of international crimes. The complementarity principle would have functioned properly in that the performance of national courts would have obviated the intervention of the Court.

While the rhetorical force of this statement is compelling, it is also rather sweeping, because it ignores that domestic jurisdictions are sometimes simply – legally and/or politically – incapable of prosecuting some persons that occupy the highest positions in the State hierarchy. The judgment of the International Court of Justice in the Arrest Warrant Case (Belgium v. Congo) had made this already abundantly clear, but the expansion of the ICC’s jurisdiction with the crime of aggression in 2011 has made the predicament even more visible and awkward. On 27 and 29 June 2022, President Vladimir Putin visited the former Soviet republics Tajikistan and Turkmenistan, his first foreign trips since the armed attack on Ukraine. Obviously, it would be inconceivable that Putin would be arrested on charges of having committed the crime of aggression. But even if one of those countries would be bold enough to give it a try, any subsequent investigation and prosecution would be precluded by law. As an incumbent Head of State, Putin enjoys full personal immunity against criminal measures by national courts.

The Question of Immunity

On paper, the International Criminal Court is not impressed by the high status of Russia’s president. Article 27 of the Rome Statute explicitly stipulates that the official capacity of a Head of State or Government does not exempt a person from criminal responsibility before the Court. Both functional and personal immunities have been abolished in respect of persons standing trial before ‘truly international criminal courts and tribunals’. The principle of irrelevance of official capacity is the legacy of the Nuremberg Tribunal. It epitomizes that international criminal courts are particularly apt to exercise jurisdiction in situations that are off-limits to States, because of the sacred principles of sovereignty and inter-state equality.

At first blush, the entire legal architecture of the Rome Statute seems to be geared to accommodate an investigation and prosecution by the Court of Putin’s appalling attack on Ukraine. His embodiment of political and military power in Russia fits the description of a ‘person effectively exercising control over or directing the political or military action of a state’ (Article 8bis, s. 1 Rome Statute) like a glove. That the assault prima facie meets the elements of an act of aggression (Article 8bis, s. 2 Rome Statute [invasion or attack by military forces of the territory of another State, bombardment, blockade, attack on the military forces of another state]) needs no further discussion either. Of course, he did not commit the crime in person, but he could be charged with ‘ordering aggression’ (Article 25, s. 3 sub b Rome Statute). So far, the Statute is internally fully consistent. The removal of all immunities dovetails with the qualification of aggression as a leadership crime par excellence. After all, any persistence of immunity would defeat the purpose of bringing Heads of States that are the prime perpetrators of that crime to justice.

Duty to Cooperate?

In view of Putin’s recent travel movements abroad, it would be an interesting question whether Tajikistan – a State Party to the Rome Statute – would be under an obligation to cooperate and surrender Putin to the Court, if such a request were to be submitted. The outcome of the Appeal’s Chamber’s decision in the Al Bashir-case, denying States Parties to invoke personal immunities of the Head of State of a non-state party as a ground for refusing such a request, unequivocally answers the question in the affirmative. However, the issue is merely of theoretical relevance, because the flabbergasting conclusion is that the Court lacks jurisdiction, despite the fact that the acts of aggression are committed on Ukrainian territory. Article 15bis, section 5 of the Rome Statute deviates from the general jurisdictional regime that authorizes the Court to exercise jurisdiction if either the State on the territory of which the conduct occurred, or the State of which the suspect is a national, is a Party to the Rome Statute (Article 12, s. 2 Rome Statute). Interestingly, Article 15bis reverses the situation to the detriment of the Court by denying its jurisdiction in respect of aggression if either the State on the territory on which the crime is committed, or the State the suspect is a national of is not a Party to the Rome Statute. In other words, the State loci delicti and the State of nationality being a Party to the Rome Statute is a prerequisite for the Court’s jurisdiction in case of aggression. Of course, this demanding regulation can be circumvented by an ad hoc declaration ex Article 12(3) Rome Statute, lodged by Russia, in which it accepts the Court’s jurisdiction for the situation in question, or by a Resolution of the Security Council, acting by virtue of Chapter VII of the Charter, referring the situation to the Court. But these are imaginary options, as long as Putin remains in power. And even if Putin would abdicate, it is rather unlikely that a successor would succumb to such an act of contrition, because it would inflict fatal damage to Russia’s reputation as a valiant opponent of fascism.

Now I do not pretend for a moment that these observations are entirely new. The predicament and limitations of the Court have already been noted and skillfully analyzed in lots of contributions in the blogosphere. What I find a bit disconcerting, though, is that most reactions have been somewhat resigned or have turned their face to the ‘sunny side of the street’, by emphasizing the remaining options for the Court in the realm of war crimes and crimes against humanity. For sure, such crimes that are allegedly committed by Russian soldiers are within the scope of the ICC, as Ukraine – not being a party to the Rome Statute – has lodged a declaration ex Article 12(3) Rome Statute. On 2 March 2022, the ICC- Prosecutor Karim Khan has officially opened an investigation, after no less than 39 States Parties had referred the situation to the Court. Simultaneously, criminal proceedings against suspects of war crimes are taking place in Ukraine and they have already yielded convictions (see the informative blog of Sergey Vasiliev). However, these positive developments are only a partial consolation and do not detract from the bitter conclusion that international criminal justice is completely teethless in the face of blatant aggression. I am not so naïve as to consider it a realistic option that Putin appears in the dock in The Hague, while he is still in office as president of Russia. Neither the ICC, nor any State party would exhibit the irresponsible recklessness to conspire in such an adventure, as it would expose both the Netherlands and the State in question to (nuclear) retaliation. Judicial institutions cannot trump political and military power. Any contention to the contrary amounts to ‘messianic thinking’, as David Luban has correctly observed (‘After the Honeymoon; Reflections on the Current State of International Criminal Justice’, 11 Journal of International Criminal Justice (2013), 505-515).

In Dire Need of Change

What is at stake is a deeper, moral-political issue. At the turn of the century, we have briefly reveled in the belief that States are not beyond good and evil. Of course, we do not need to be experts of the works of Shakespeare to understand that Kings can do wrong. But they had always been impervious to human – criminal – justice, unless they had been defeated in war or deposed by their own people. The entry into force of the Rome Statute which confirmed the abolition of all immunities before the Court turned the tables and raised the expectations. However, the Empire struck back! The introduction of the ominous Article 15bis, section 5 of the Rome Statute, in the aftermath and as a result of the Review Conference in Kampala in 2010, effectively reintroduced both personal and functional immunity by the back door. Those who are slightly familiar with the trials and tribulations of international criminal justice understood the disastrous consequences of the provision, but the criminal attack on Ukraine has made it much more palpable.

In my view, the only solution is that the Assembly of States must return to the drawing table and cancel the provision. The Prosecutor should at least have the possibility to start preliminary examinations into the crime of aggression, allegedly committed by Putin. Any investigation or prosecution can be truncated by a Resolution of the Security Council, if the Council – probably for good reasons – decides that the preservation of world peace is to prevail over a doggedly pursuit of justice (Article 16 Rome Statute). But the initiation of an inquiry at least demonstrates that Putin’s conduct is beyond the pale. It would do justice to Benjamin Ferencz’ famous observation that aggression is arguably the worst crime of all, as it unleashes all subsequent atrocities.