No Two Cases are the Same

[Stephen A. Lamony is an international lawyer.]

Last March, the Pre-Trial Chamber II of the International Criminal Court (ICC) issued an arrest warrant for Russian Federation President Vladimir Putin. The arrest warrant has sparked a worldwide discussion on international cooperation with the ICC; mainly whether South Africa will arrest Putin if he visits the country for the 15th BRICS Summit. The South African Government is facing a legal dilemma when it comes to Putin. They do not want to arrest him, so they’re considering asking China or Mozambique to host the summit instead.

Fourteen years before, the ICC issued the first arrest warrant against a sitting head of state, Omar Al Bashir of Sudan. A second arrest warrant against Al Bashir was issued a year later. Al Bashir was the first President ever indicted by the lCC, while Muammar Gaddafi is the second, and Putin is the third.

The essay will discuss the various responses of states and regional bodies to the indictments of Al Bashir and Putin including comparing the global south vs global north responses. Are these two cases the same? Will they end differently?

The similarities between these two cases are the obvious ones.

Both heads of state have been charged with international crimes and are leaders of countries that are not party to the Rome Statute. They were indicted while in office and remain at large. The responses of the United Nations in both instances were similar as they avoided commenting about the arrest warrants. Ban Ki Moon stressed the ICC’s status as an “independent judicial institution”. While UN Spokesperson Stéphane Dujarric said the ICC and the UN were “separate institutions, with separate mandates.”

The similarities, however, end there.

The way the situations came before the ICC differ. On 31 March 2005, the United Nations Security Council (UNSC) voted to refer the Darfur, Sudan situation to the Prosecutor of the ICC. The United States Government (USG) abstained from the vote, but strongly supported the idea of bringing to justice those responsible for the crimes and atrocities that had occurred in Darfur and ending the climate of impunity there. However, the USG objected to the view that the Court should exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. In 2013, the USG denied Al Bashir a visa to attend the UN General Assembly.

On 2 March 2022, the ICC Prosecutor opened an investigation into alleged war crimes committed in the Ukraine at the request of 39 state parties to the court. This request by 39 states is historic because there have never been so many referrals for one situation to the Office of the Prosecutor of the ICC.

When the ICC indicted Putin, the USG did not object to the ICC’s jurisdiction over a non-state party as it had done in the Darfur situation. The USG hasn’t been vocal about their ability to cooperate with the ICC becauseit is not a party. Instead, President Joe Biden said Vladimir Putin had committed war crimes in Ukraine, and the lCC’s issue of an arrest warrant for the Russian President was justified. The Russian Federation, part of the UNSC, dismissed the warrants. The Kremlin said the Court’s charges against Putin were outrageous and meaningless concerning jurisdiction in Russia. It remains to be seen whether Putin will attend the UN General Assembly in September 2023 in person. He did not attend the UNGA last year, and it is unlikely that he was planning to do so this year. But should he change his mind and decide to attend, will he be denied a visa like Bashir was, or will he attend virtually? 

In addition to the US, other nations have reacted differently to the two indictments. Responses to Putin’s warrant have varied. Ireland, Croatia, Austria, and Germany joined the list of countries who said they would enforce the warrant. Hungary, a Russian ally and ICC state party declared it would not honor its cooperation obligation citing its constitution. While Armenia initially stated that it would honor the ICC’s arrest warrant, it changed its position after a threat of retaliation by Russia. Al Bashir didn’t travel to the West when the ICC issued his arrest warrant; no European state said they would arrest Al Bashir if he were to set foot in their countries.

Global south countries reacted quite differently to Al Bashir’s warrant. Only one African Country, South Africa, said they would not hesitate to arrest Al Bashir, but later contradicted itself. However, despite calls to arrest and surrender Al Bashir to the lCC, he visited the territories of eight stateparties in Africa and the Middle East. Most states cited the personal immunity of a head of state – Chad, Jordan,and South Africa refused to arrest Al Bashir because they believed a head of state has immunity. South Africa’s Legal Adviser, Dire Tladi told judges “There is no duty under international law and the Rome Statute to arrest a serving head of state of a non-state-party such as Omar al-Bashir.”

Other nations decided to uphold a non-cooperation decision by the African Union. The Democratic Republic of Congo, Djibouti, Kenya, Malawi, Nigeria, and Uganda declined to arrest Al Bashir based on that decision. The Kenyan Government mentioned that Kenya’s first obligation was to the African Union, not the International Criminal Court.

The reactions of these state parties, the response of the Assembly of States Parties to the ICC to non-compliance by state parties, and its failure to refer states parties to the UNSC as they are empowered to do under Article 87 (7) of the Rome Statute meant that there were no real consequences when states fail to react to arrest warrants.

Regional bodies also responded differently. As mentioned earlier, four months after Bashir was charged, the Heads of State and Government of the African Union (AU) met in Addis Ababa and issued a decision in July of 2009. The AU expressed concern that their proposal to defer the indictment of Al Bashir was rejected. Therefore, they decided that the AU Member States shall not cooperate according to Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of President Omar Al Bashir of Sudan.

Amr Moussa, then Secretary General of the League of Arab States (LAS), also criticized the ICC decision to indict Al Bashir. He said, “at the same time, we are not convinced that the steps taken (by) the criminal court were well considered.” In March 2009, a meeting of the Arab Summit repudiated the indictment of Omar Al Bashir, “we reiterate our solidarity with Sudan and our rejection of the measure of the …. international Criminal Court against His Excellency (Bashir).

The EU unequivocally supported Bashir’s indictment and endorsed investigations into Putin’s indictment. For the first time in the history of the ICC, forty countries raised £4 million ($4.9 million) to support the International Criminal Court in its investigations into alleged war crimes in Ukraine and its work to hold Russia to account. The EU endorsed the investigation capacities of the ICC with €7.25 million. Nevertheless, the EU made it clear that safeguarding their own interests was their top priority.

These differences in reactions very much have to do with the different political realities and power disparity between the global south and the global north. Al Bashir was the leader of an African country, the continent with the highest situations before the Court and with less political influence in the international community. Putin is the President of a powerful country and a Permanent Five (P5) member of the UNSC. This is clear in the Russian indictments of an ICC judge and the prosecutor as well as the threats the Russian Federation has been issued resulting in countries thinking twice about supporting Putin’s arrest and extradition. Six days after Putin was indicted, Russia’s ex-President Dmitry Medvedev threatened,“Any attempt to arrest President Vladimir Putin would amount to a declaration of war against Russia.” Medvedev threatened to blow up the ICC with a hypersonic missile in response to its decision to arrest Putin. As stated above, Armenia took Russia’s threats seriously and backtracked on an earlier announcement that the country would arrest Putin.

It is hard to say for sure whether Sudan actually made threats that would have been taken seriously enough to make other nations reconsider their decision to arrest Al-Bashir. However, Sudanese government allegedly used blackmail and intimidation in 2015 when it held South African troops stationed in Darfur, hostage to prevent the arrest of Al Bashir in South Africa during his visit. It is should be noted that both the United Nations and the South African National Defense Force denied the media story stating, “there is no iota of truth in these allegations. There is equally no substance to support these allegations.” UN spokesman Farhan Haq said, “South Africa currently has 802 members of an infantry battalion deployed in Kutum, Malha and Mellit team sites in North Darfur. We can confirm that the mission’s South African troops were not held hostage or under any threat as reported in the media.” If Sudan did indeed use such tactics, to get their way, it is concerning to see Russia following in their footsteps and intimidating other states.

The arrest warrants issued against Al Bashir and Putin have ignited heated discussions worldwide and although there are similarities between both cases, there are differences in the responses of states and regional bodies. As discussed above, these differences in reactions are primarily due to the distinct political realities of the global south versus the global north. Looking ahead, it remains to be seen whether Putin will be arrested if he visits a state party to the Rome Statute or attends the UN General Assembly. Overall, the cases of Al Bashir and Putin emphasize the challenges the ICC faces in enforcing international justice and holding heads of state accountable for their actions.