Imagine a warrior king, shielded by divine powers, stepping unscathed onto the battlefield where mere mortals dare not challenge him. In mythology, gods often grant their chosen leaders’ invincibility, allowing them to defy the laws that bind ordinary men. Today, Vladimir Putin mirrors this mythic figure, striding confidently into Mongolia, untouched by the looming shadow of an arrest warrant issued by the International Criminal Court (ICC). Like a ruler anointed with the immunity of the gods, Putin flouts international justice, casting doubt on the very strength of the ICC and its ability to hold power accountable. As with the ancient tales of invincible kings, the world watches, questioning whether the ICC is powerless against leaders shielded not by divine forces, but by the cold realities of geopolitics in this chaotic world where “war” becomes a new normal.
Vladimir Putin’s recent visit to Mongolia, despite an active arrest warrant from the International Criminal Court (ICC) for war crimes, depicts the dark clouds that always looms over the effectiveness of the ICC and its ability to hold world leaders accountable. Mongolia, an ICC member state and a signatory to the Rome Statute, was obligated to arrest Putin upon his arrival on September 2, 2024. Yet, Mongolia chose to conveniently ignore the ICC’s mandate, leaving many to question the future viability of the ICC. This incident raises serious questions about the ICC’s efficacy and whether it is on a path to irrelevance or demise.
Decoding the Mongolia’s Obligations: Misnomer of Rome Statute
The Rome Statute, which came into force in 2002, established the ICC to prosecute individuals for war crimes, genocide, and crimes against humanity. As a signatory, Mongolia is bound by Article 59 of the Rome Statute, which requires member states to arrest individuals for whom the ICC has issued warrants. Article 86 further reinforces this obligation, stating that parties “shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes.”
Despite these clear obligations, Mongolia did not act on the arrest warrant for Putin. Instead, it effectively chose geopolitical pragmatism over its legal commitments, a decision likely driven by its geographic and political realities, being sandwiched between two powerful neighbours—Russia and China. Both countries have traditionally wielded significant influence over Mongolia, limiting its autonomy in international affairs.
The Dichotomy: Principle of Sovereignty vs. International Obligations
Mongolia’s decision to allow Putin’s visit without arrest raises the enduring conflict between state sovereignty and international legal obligations. The principle of sovereignty has long been a cornerstone of international law (“IL”), allowing states to exercise authority within their territorial borders free from external interference. However, this principle has increasingly come into conflict with obligations arising from multilateral treaties like the Rome Statute, which seek to hold individuals accountable for international crimes.
Mongolia’s inaction is a clear example of a confabulated conundrum between these two principles in pragmatic realities. By failing to arrest Putin, Mongolia prioritized its national interest and diplomatic relations with Russia over its international legal obligations. This underscores a growing trend where states, when confronted with challenging and difficult political choices, choose sovereignty over international cooperation, leading to questions about the enforceability of international law as it’s often been said that IL is a misnomer.
A Plausible Justification: Putin’s Immunity and Articles 27 and 98 of the Rome Statute
Looking from legal lens, what’s the plausible defence as why Mongolia has not arrested Putin is the dynamic relationship between Article 27 and 98 of the Rome Statute. Article 27 of the Rome Statute asserts that official capacity, including that of a head of state, cannot serve as a defense to avoid criminal responsibility. On the surface, Article 27 appears to strip heads of state of any claim to immunity before the ICC. However, Article 98 complicates the issue by stating that the ICC cannot request a member state to act in a way that would force it to violate its obligations under international law concerning state or diplomatic immunity.
The immunity Putin enjoys as a head of state is recognized under customary international law, where heads of state are generally immune from prosecution in foreign courts. Mongolia, like many states, faces the challenge of balancing its obligations to the ICC under Article 27 and its duties under customary international law, as reflected in Article 98.
An Existing Catch: Jordan Referral re Al-Bashir Appeal (2019)
The ICC Appeals Chamber addressed this tension in the Jordan Referral re Al-Bashir Appeal (2019), which concerned Jordan’s failure to arrest Sudan’s then-president, Omar Al-Bashir, while he was under an ICC arrest warrant. The court ruled that Article 27(2) precludes any immunity claims, even for heads of state, when a member state is requested to cooperate with the ICC. The Chamber declared:
“[T]here is no reason why Article 27(2) should be interpreted in a way that would allow a State Party to invoke Head of State immunity … if the Court were to ask for the arrest and surrender of the Head of State by making a request to that effect to another State Party.”
The Appeals Chamber clarified that Article 98(1) does not create or recognize immunities but only addresses how to proceed when such immunities exist. In this sense, once a state ratifies the Rome Statute, it has accepted that head of state immunity cannot shield individuals from the ICC’s jurisdiction. According to this judgment, ICC member states are required to cooperate with arrest and surrender requests, as head of state immunity does not block the Court’s jurisdiction.
Mongolia’s Position: Immunity and Geopolitical Realities
Despite the ICC’s clear legal precedent, Mongolia chose not to arrest Putin. This decision is deeply rooted in geopolitical realities. The potential diplomatic fallout from arresting Putin would have placed Mongolia in an untenable position, risking severe political and economic consequences. While Mongolia is a signatory to the Rome Statute, it is also deeply reliant on its relationship with Russia, both economically and strategically. Putin’s choice to visit Mongolia was likely based on assurances that he would not be arrested, a decision that reveals the realpolitik nature of international law enforcement. Mongolia’s decision not to act exposes a significant limitation in the ICC’s ability to execute its arrest warrants when geopolitical considerations are at play.
The Political Realities: Why Putin Was Never at Risk
Mongolia’s reluctance to arrest Putin is not surprising. Moscow’s influence in Ulaanbaatar is substantial, and Mongolia’s economy is heavily reliant on trade with both Russia and China. Arresting Putin would have been seen as an act of aggression by Russia and would have strained Mongolia’s diplomatic relations with a crucial ally. This situation is not unique to Mongolia. Other ICC member states have similarly avoided arresting high-profile individuals with arrest warrants, citing political considerations. In 2015, for example, South Africa failed to arrest Sudanese President Omar al-Bashir, who had been charged by the ICC with war crimes, during his visit to Johannesburg. South Africa justified its decision by pointing to its own laws granting heads of state immunity while attending international conferences. Similarly, Uganda and Chad also failed to act on ICC warrants for al-Bashir, citing regional political interests.
These instances highlight the ICC’s limited ability to enforce its rulings when powerful political or economic interests are at stake, effectively rendering the Court’s decisions toothless and it remains just all barks and no bites.
Critical Analysis: The Limits of International Law and the ICC
Mongolia’s inaction brings into sharp relief the practical limitations of the ICC. While the Rome Statute envisions a global system of accountability for international crimes, enforcement of ICC decisions remains heavily reliant on state cooperation. This reliance becomes problematic when powerful leaders from states that are not ICC members, like Putin from Russia, are involved. States like Mongolia are caught between their international legal obligations and their national interests, often choosing the latter.
Additionally, the Jordan Referral re Al-Bashir decision, while legally sound, has been criticized for being overly idealistic in its assumption that states will prioritize ICC obligations over political realities. Legal scholars such as Dapo Akande argue that expecting ICC member states to strip heads of state of their immunity, particularly those from non-member states, places an unrealistic burden on states.
In this context, Mongolia’s decision not to arrest Putin aligns with broader trends of selective enforcement of ICC arrest warrants. Many African states, as highlighted previously, have similarly refused to execute ICC warrants against Heads of State, citing reasons of state sovereignty and diplomatic relations. This trend raises questions about the future relevance of the ICC if states can selectively comply with its directives.
Conclusion
Vladimir Putin’s visit to Mongolia without the threat of arrest signals a grim reality for the ICC. While the ICC remains an important institution for the promotion of international justice, its ability to enforce arrest warrants, particularly against powerful political leaders, remains limited. The tension between Articles 27 and 98 of the Rome Statute continues to be exploited, with states prioritizing national interests over international legal obligations. Mongolia’s decision, while legally questionable, reflects the broader geopolitical landscape in which international law operates. As this case demonstrates, the ICC’s authority is waning, raising concerns about the future of international justice. Furthermore, this instance has dynamic reflective lessons ranging from law to geopolitics.
[Representational image. Credit: kremlin.ru]
The views and opinions expressed in this article are those of the author.
Shelal L. Rajput is an Associate with a Delhi based law firm and holds a B.B.A LL.B (Hons) from Symbiosis Law School, Pune with topper of the batch. He loves to write and explore the nuances of law from a socio-legal perspective.
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