Can Peace Negotiations Justify Non-Execution of ICC Arrest Warrants? The ICC’s Interpretation of Article 97 of the Rome Statute

[Catherine Maia is a professor of International Law at Lusófona University (Portugal), and Sciences Po Paris (France)]

On 9 June 2026, ICC Pre-Trial Chamber II issued a significant decision in the Situation in Ukraine concerning the interpretation of Article 97 of the Rome Statute. Although the judgment remains heavily redacted, it provides the Court’s most comprehensive guidance to date on the consultation procedure available to States Parties that encounter difficulties in executing a request for cooperation.

The importance of the decision extends well beyond the Ukrainian situation. It addresses a question that has become increasingly prominent in international criminal law: how should States Parties reconcile their obligation to execute ICC arrest warrants with the practical demands of international peace negotiations? Arrest warrants issued against sitting heads of State or government have repeatedly raised this dilemma, particularly where the individuals concerned are expected to participate in peace talks or high-level diplomatic meetings.

Without departing from its established case law on immunities or States’ obligations to cooperate with the Court, the Chamber offers – for the first time – a detailed interpretation of Article 97 of the Rome Statute. More importantly, it clarifies the circumstances in which obligations arising under the UN Charter may be taken into account when assessing a State Party’s compliance with its obligations under the Rome Statute. The decision therefore goes beyond the procedural operation of Article 97: it sheds new light on the relationship between international criminal justice, the law governing cooperation with the ICC, and the institutional framework of the United Nations.

Defining the Scope of the Article 97 Consultation Procedure

The proceedings originated from a request submitted by a confidential State Party that was considering hosting peace negotiations on its territory in which Russian President Vladimir Putin, the subject of an ICC arrest warrant issued on 17 March 2023, might participate.

Rather than deciding unilaterally how to proceed, the State requested consultations with the Court under Article 97 of the Rome Statute, which allows States Parties to seek guidance when they encounter difficulties that may impede the execution of a request for cooperation.

The Chamber’s first major contribution is to clarify the purpose and limits of this consultation procedure. It emphasizes that Article 97 is not a mechanism through which States may seek abstract legal advice or obtain advance authorization not to comply with their cooperation obligations. Consultations may only be initiated where a real, concrete and objectively identifiable difficulty arises in the execution of a specific request for cooperation. In doing so, the Chamber firmly rejects any interpretation of Article 97 as a general advisory mechanism.

The decision also makes clear that invoking Article 97 does not entitle a State Party to suspend or unilaterally disregard its obligations under the Rome Statute. Rather, the provision establishes a procedural framework requiring the State to inform the Court, without delay, of the difficulties encountered and to provide all relevant information so that the Court itself can determine the legal consequences under the Statute.

This clarification is particularly significant. Until now, Article 97 had played only a marginal role in the Court’s jurisprudence and its procedural regime remained largely undefined. The Chamber therefore fills an important gap by identifying both the conditions under which consultations may be initiated and the procedural obligations incumbent upon States Parties throughout that process.

Reaffirming the Court’s Jurisprudence on Arrest Obligations

While the decision breaks new ground on the interpretation of Article 97, it does not alter the Court’s settled case law on the arrest of sitting heads of State. On the contrary, the Chamber firmly reiterates that Article 27 of the Rome Statute precludes official capacity from being invoked before the Court, including by incumbent heads of State or government, and therefore confirms the obligation of States Parties to execute ICC arrest warrants.

The Chamber likewise reaffirms that the personal immunities of officials from non-States Parties cannot be relied upon in proceedings before the Court and that Article 98 does not require a prior waiver of immunity before an arrest warrant may be executed.

In this respect, the ruling is fully consistent with the Court’s recent decisions concerning Mongolia and Tajikistan, both of which confirmed that States Parties remain under an obligation to arrest and surrender individuals sought by the Court, even where they are incumbent heads of State of non-States Parties. The issue has also recently resurfaced in the proceedings concerning Ronald Dela Rosa in the Situation in the Philippines, illustrating the continuing practical significance of disputes over the enforcement of ICC arrest warrants.

The decision also reiterates the Court’s understanding of the nature of cooperation under the Rome Statute. According to the Chamber, cooperation obligations arise within a vertical legal relationship between States Parties and the Court, rather than through the traditional horizontal framework governing relations between sovereign States. That relationship reflects the Court’s mandate to prosecute crimes of concern to the international community as a whole, many of which are widely regarded as violations of jus cogens. Against that background, the Chamber confirms that treaty-based obligations of cooperation owed to the Court prevail over the ordinary rules governing inter-State immunities.

Accordingly, this part of the decision is best understood as a reaffirmation – not a revision – of the Court’s existing jurisprudence. Its principal contribution lies elsewhere: in the Chamber’s interpretation of Article 97 and its effort to reconcile the Rome Statute with the broader framework of international law.

Reconciling ICC Cooperation with UN Peace Processes

The decision’s most significant contribution lies in its treatment of the relationship between ICC arrest obligations and international peace processes. This is where the Chamber genuinely breaks new ground.

The Chamber begins by reaffirming an important point: under the Rome Statute, there is only one mechanism capable of suspending an investigation, prosecution, or – by implication – the execution of an arrest request. That mechanism is Article 16, which requires a resolution of the UN Security Council acting under Chapter VII of the UN Charter. Outside that framework, the Rome Statute provides no general power to suspend or defer States Parties’ obligations to cooperate with the Court.

The real innovation of the judgment, however, lies elsewhere. The Chamber draws a distinction between peace negotiations formally conducted under United Nations auspices and negotiations taking place in any other institutional framework.

According to the Chamber, where a person sought by the ICC is expected to participate, in his or her official capacity as head of State or government, in a peace conference formally convened by the United Nations on the territory of a State Party, obligations arising under the UN Charter may become relevant. They may be taken into account by the Court when assessing – within possible Article 87(7) non-cooperation proceedings – whether the State Party has failed to comply with its obligations under the Rome Statute.

The scope of this holding should not, however, be overstated. The Chamber does not create a new exception to the obligation to arrest individuals sought by the Court, nor does it authorize States Parties to suspend the execution of arrest warrants on their own initiative. Rather, it recognizes that, in the exceptional context of a United Nations-led peace process, potentially competing obligations flowing from the UN Charter may constitute a relevant consideration for the Court itself when assessing a State’s compliance with the Rome Statute.

Conversely, where peace negotiations are not formally organized under the auspices of the United Nations, the Chamber considers that no competing legal obligation will, in principle, arise that could either trigger the consultation procedure under Article 97 or justify the non-execution of an ICC request for cooperation.

The distinction is both subtle and important. The judgment does not subordinate the Rome Statute to the UN Charter, nor does it introduce a peace-process exception to cooperation obligations. Instead, it acknowledges that the Rome Statute operates within the broader framework of international law and that, in exceptional circumstances, the Court itself – not individual States – must determine how potentially competing international obligations should be reconciled. In other words, the Chamber places the responsibility for reconciling competing international obligations in the hands of the Court itself, not individual States.

A Systemic Interpretation of the Rome Statute

Beyond its practical implications, the decision is noteworthy for its methodological significance. Until now, the Court’s jurisprudence on immunities and cooperation had largely evolved through the combined interpretation of Articles 27, 86, 89, and 98 of the Rome Statute. The legal analysis remained primarily internal to the Statute itself.

The Chamber adopts what is arguably its most explicit systemic interpretative approach to date. Rather than confining its reasoning to the Rome Statute, it also relies on Article 16, the Vienna Convention on the Law of Treaties, which requires treaties to be interpreted in light of:

“any relevant rules of international law applicable in the relations between the parties.”

That reference is particularly significant. By expressly invoking the principle of systemic integration, the Chamber rejects an isolated reading of the Rome Statute and instead situates it within the broader framework of public international law. While preserving the Statute’s autonomy, it recognizes that the Court cannot interpret States Parties’ cooperation obligations without taking into account other applicable international legal obligations, including those that may arise under the UN Charter.

The decision therefore extends beyond the interpretation of Article 97 alone. It illustrates an interpretative methodology that seeks to reconcile the Rome Statute with the wider international legal order, rather than treating it as a self-contained legal regime. Whether this systemic approach will influence the Court’s future jurisprudence remains to be seen, but the judgment undoubtedly marks an important step in that direction.

Beyond Ukraine

Although rendered in the Situation in Ukraine, the implications of this decision extend far beyond that specific context. The questions addressed by the Chamber are likely to arise whenever an individual sought by the ICC is expected to participate in international negotiations or a peace process. The principles articulated in this judgment may therefore prove relevant in other situations currently before the Court, as well as in future efforts to resolve armed conflicts through diplomacy.

The decision also provides important practical guidance for States Parties. It significantly narrows the scope for unilateral political or diplomatic assessments by making clear that States cannot decide for themselves to refrain from executing an ICC arrest warrant. Where they consider that exceptional circumstances may affect the execution of a request for cooperation, they must instead trigger the consultation procedure under Article 97 of the Rome Statute, promptly provide the Court with all relevant information, and refrain from suspending the execution of the request on their own initiative. It is ultimately for the Court – not the State concerned – to determine the legal consequences of those circumstances, including, where appropriate, in proceedings concerning non-cooperation under Article 87(7).

The judgment therefore does not create a new exception to the duty to cooperate with the Court. Nor does it establish a “peace negotiations” exception to the execution of ICC arrest warrants. Instead, it clarifies the procedural pathway that States Parties must follow when they believe that obligations arising under the UN Charter may conflict with their obligations under the Rome Statute.

More fundamentally, the decision reflects a broader evolution in the Court’s interpretative methodology. By reading the Rome Statute in conjunction with the UN Charter and the principle of systemic integration embodied in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, the Chamber acknowledges that the ICC does not operate in isolation from the wider international legal order.

Whether future Chambers will adopt the same approach remains to be seen. What is already clear, however, is that this judgment marks the Court’s first comprehensive interpretation of Article 97 and its first sustained attempt to explain how obligations under the Rome Statute should be reconciled with those arising under the UN Charter in the exceptional context of UN-sponsored peace processes. For that reason alone, it is likely to become a leading authority on Article 97 and an important reference in future debates on the relationship between international criminal justice and the maintenance of international peace and security.