A David and Goliath Scenario: Power Dynamics Involved in the Execution of ICC Arrest Warrants

A David and Goliath Scenario: Power Dynamics Involved in the Execution of ICC Arrest Warrants

[Mutondi Mulaudzi is a Judicial Fellow at the International Court of Justice and Ph.D. Candidate at the University of Witwatersrand, with research specializing in human rights law. Danielle Flanagan is a Judicial Fellow at the International Court of Justice, holding a J.D. and Certificate in Refugees and Humanitarian Emergencies from Georgetown University Law Center.]

The International Criminal Court’s (ICC) arrest warrants, issued for both Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova, mark an important advance in the pursuit of international accountability and an even more important setback in terms of ensuring equitable cooperation among States. In the absence of an internal enforcement mechanism or ad-hoc arrangements with non-State Parties to the Rome Statute, the ICC is entirely reliant on its 123 State Parties to execute warrants for arrest. Despite the legal obligation to effectuate warrants in accordance with Court requests for arrest and surrender under Article 89(1), many States, particularly those developing, are reluctant to cooperate when such requests are directed against current heads of State or government, among other senior government officials. Needless to say, this reluctance is only compounded when implicating one of the most powerful States, possessing an active nuclear arsenal that it has repeatedly expressed it is not afraid to enlist. 

Against this backdrop, this blog post examines how existing power imbalances among States creates an enforcement divide, whereby those State Parties with greater development levels and defence capabilities are better positioned to both execute ICC arrest warrants and withstand a potential retaliatory response from Russia. The ICC structure, as it exists in its present form, overlooks and leaves vulnerable those States who are still developing yet bear the same responsibility under the Statute to carry out and effect arrests.

South Africa’s Record of Compliance with ICC Arrest and Surrender Requests 

Ahead of the August 2023 15th BRICS Summit (“the summit”), questions have arisen as to whether President Putin’s expected presence in South Africa, although still unconfirmed, presents an opportunity for his arrest. Assuming President Putin does in fact attend, such a visit places South African President Cyril Ramaphosa in a precarious position, as his government has not condemned Russia’s invasion of Ukraine yet is cognisant of its legal obligation under the Rome Statute. Specifically, in 2022, South Africa abstained from every UN General Assembly resolution addressing the Russia-Ukraine conflict, strategically assuming a default position of non-alignment.  However, President Ramaphosa will be compelled to leave his position on the fence if President Putin does indeed make a Summit appearance. 

The possibility of such an arrest is reminiscent of South Africa’s previous act of non-compliance with the request by the ICC to arrest and surrender former Sudanese President Omar al-Bashir.  In such case, the ICC Pre-Trial Chamber II held that although South Africa obstructed justice when allowing al-Bashir to leave the country after attending an African Union summit in Johannesburg, it would still not report South Africa to the UN Security Council for further action. Some argue, namely the three-panel bench of the Pre-Trial Chamber II, that this decision is a result of the ineffectiveness of previous referrals of non-cooperation by States to the UN Security Council and the ICC’s Assembly of State Parties. However, we argue that there may be another, more basic explanation at play: South Africa, and other developing State Parties, are in relatively weaker positions vis-à-vis other Parties to logistically coordinate and effect arrests as well as to withstand diplomatic, economic, and even military pushback from countries whose nationals have an outstanding warrant for their arrest. 

Even in the al-Bashir case, Pretoria High Court Judge Dunstan Mlambo acknowledged that South Africa had disregarded international law for purposes of preserving relations with the African Union, which had, at the time, been encouraging Member States not to cooperate with the ICC due to its “African bias” and condemning South African xenophobic attacks on foreign African nationals.  While this is certainly one show of diplomatic and economic pressure on a developing State—ultimately influencing it to defy orders from both the ICC and its own domestic courts—these pressures are even more acutely felt when presented by Russia, one of the most powerful countries on the world stage. 

The Possibility of Russian Retaliation

To date, Russia has threatened the use of hypersonic missile strikes on those involved in issuing an arrest warrant against President Putin, particularly those sitting at the ICC in The Hague. Imagine the consequences for a State that made efforts to carry out such an arrest. Margarita Simonyan, the editor-in-chief of the Kremlin-funded broadcaster RT, has already commented how she would “like to see a country that would arrest Putin under the ruling of The Hague. In about eight minutes, or whatever the [missile] flight time to its capital.” Likewise, former Russian President Dmitry Medvedev warned that a country that detains President Putin following an arrest warrant would amount to a “declaration of war.” Beyond these political and military pressures, certain trade dependencies and sanctions may also lead States to take fright at potential economic fallout.  

A Rock and a Hard Place?

These considerations illuminate the lack of adequate tools that the ICC maintains to ensure and promote cooperation among its State Parties. As of now, the ICC has issued 38 arrest warrants for persons allegedly implicated in the commission of grave international crimes. Of these 38, 21 individuals have been arrested and transferred to ICC custody. These numbers may not be merely reflective of the relatively low likelihood in which suspects are successfully apprehended, but also of the ICC’s difficulty to provide certain minimum protections to State Parties when executing its warrants for arrest. 

Without protections, State Parties are effectively placed between a rock and a hard place: a choice between confronting the political, economic, and/or military might of one or several States vs. violating its obligations under the Rome Statute. As for South Africa’s potential dilemma, its government would have to balance the risk of declaring war against a breach of its international obligations. This reality plainly demonstrates how the framework for international criminal law under the Rome Statute fails to promote genuine collective responsibility among the community of State Parties, leaving a considerable fraction of these States at risk of retaliation. It is therefore worth examining, even if in theory, how power dynamics inform State compliance with international criminal law obligations. To be clear, this post does not condemn the issuance of these two arrest warrants; it simply argues that further considerations need to be given to the various positionalities of ICC State Parties. 

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Courts & Tribunals, Featured, General, International Criminal Law, Public International Law
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