Putin Travels to Mongolia: What Prevents His Arrest?

[Dr Aloka Wanigasuriya is an assistant professor at the Department of Law, University of Southern Denmark]

The world’s attention has turned to Mongolia following the news of Russian president Vladimir Putin’s recent visit to the country. This is the first instance Putin has visited an International Criminal Court (ICC) member state after the ICC arrest warrant against him was issued linked to alleged war crimes stemming from the situation in Ukraine. In June 2022, following the Russian full-scale invasion of Ukraine, Putin visited Tajikistan another ICC states party. However, this visit took place before the Court issued an arrest warrant against him. In 2023, Putin was to visit a BRICS summit in South Africa, the latter being an ICC member state. However, following a ruling by a South African high court, the visit was cancelled. It was reported that the South African government had also urged Putin to call off the visit. Instead, Putin took part in the BRICS event via video link. On that occasion, Putin’s decision to call off the visit appeared to indicate that the ICC arrest warrant against him might be having a direct detrimental effect on his ability to freely undertake international travel, at least to ICC member states. Putin’s recent visit to Mongolia however, has raised new questions regarding the effect of ICC arrest warrants and the obligations of states parties.

The European Union, leading international human rights organisations and others have urged Mongolia to abide by its legal obligations as an ICC member state. The ICC is also reported to have stated in late August that member states have “an obligation” to take action in such situations. Ahead of Putin’s visit to Mongolia, the Ukrainian lawmakers also urged Mongolia to arrest Putin. Mongolia has traditionally maintained strong ties with Russia. The country is said to be highly dependent on Russia for fuel and electricity, which affords Russia a significant role in Mongolia’s energy security. Hence, its international obligations aside, a move to arrest the Russian head of state might prove to be a difficult choice for the country to make. Putin’s arrest in Mongolia remains highly unlikely.

Mongolia signed the constitutive instrument of the ICC, the Rome Statute, on 29^th December 2000. Subsequently, it deposited its instrument of ratification of the Rome Statute on 11^th April 2002. Moreover, in 2023, Judge Erdenebalsuren Damdin was elected to the ICC. He is the first Mongolian national to serve as a judge at the ICC. Judge Damdin’s election to the Court has been viewed by some as “a testament to the international community’s faith in Mongolia’s commitment to the principles of the Rome Statute.” However, that faith is currently being put to the test, especially in light of Mongolia’s inaction in arresting Putin. The Rome Statute outlines obligations for states parties regarding the arrest and surrender of individuals against whom the Court has issued arrest warrants. For instance, Article 89(1) of the Statute states that the ICC may transmit a request for the ‘arrest and surrender’ of a person to any state where the person may be found and request the state’s cooperation in the arrest and surrender. Pursuant to the same article, ICC member states would have to comply with such requests. Should a matter be urgent, the Court may also avail itself of Article 92(1) of the Rome Statute, which stipulates that in urgent cases the ICC “may request the provisional arrest of [a] person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91”.

The Putin Arrest Warrant

ICC Pre-Trial Chamber II issued the arrest warrant against Putin on 17^th March 2023. With the exception of some basic aspects, the ICC arrest warrant against Putin has not been made public. When issuing the warrant, ICC Pre-Trial Chamber II chose to keep the warrant secret in order to protect victims and witnesses and to safeguard the investigation. Additionally, no information is publicly available on any orders made by Pre-Trial Chamber II to the ICC Registry, which the latter would have had to transmit to member states pertaining to cooperation in matters related to Putin’s potential arrest. The unavailability of information regarding such a cooperation request also leaves unanswered the question of how the Pre-Trial Chamber would have approached the issue regarding Putin’s immunity as the head of state of an ICC non-member state (see also Sergey Vasiliev).

Putin and Personal Immunity

With regard to Putin not being arrested in Mongolia, the complex relationship between Articles 27 and 98 of the Rome Statute is once again brought to the fore. Article 27 states:

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The above makes clear that the provisions of the Rome Statute apply equally to all regardless of them being a head of state and that immunities do not preclude the Court from exercising its jurisdiction over individuals.

Article 98 of the Rome Statute is of a more procedural nature. It refers to matters relating to ‘cooperation with respect to waiver of immunity and consent to surrender’. As Rosanne Van Alebeek writes, under international law “[o]ne of the benefits a state official possesses is a comprehensive personal immunity from the jurisdiction of foreign national courts during their term of office.” Pursuant to Article 98(1), the ICC is not to proceed with a request for surrender or assistance that would require a member state to act inconsistently with the member state’s obligations under international law with respect to the state or diplomatic immunity of a third state national. In accordance with Art. 98(1), the Court can only make such a request if it first obtains the cooperation of the third state with regard to the waiver of such immunity (see also Sergey Vasiliev). In this scenario, it is almost inconceivable that Russia would agree to waive Putin’s immunity rendering it possible for Mongolia to arrest him.

However, in 2019, the ICC Appeal Chamber held in its Judgment in the Jordan Referral re Al-Bashir Appeal, that “[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” (see: pg. 5, para. 4). According to the Appeals Chamber, “Article 98(1) of the Statute does not itself stipulate, recognise or preserve any immunities. It is a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation” (see: pg. 6, para. 5). The judgment further elucidated that “States Parties to the Rome Statute, have, by virtue of ratifying the Statute, accepted that Head of State immunity cannot prevent the Court from exercising jurisdiction – which is in line with customary international law” (see: pg. 5, para. 4). Thus, according to the Appeals Chamber, in a situation regarding arrest within a national jurisdiction, “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of the Court’s jurisdiction” (see: pgs 5-6, para. 4). Hence, pursuant to the judgement, ICC member states cannot rely on head of state immunity under customary international law to refuse to abide by a request for arrest and surrender, as such immunity does not pose an obstacle for the exercise of the Court’s jurisdiction (see also Sergey Vasiliev). In such an instance, the ICC member state is obliged to cooperate with the Court in facilitating the exercise of the Court’s jurisdiction (i.e. by arresting the individual). In accordance with the above reasoning, Putin’s arrest by Mongolia as an ICC member state would not be contrary to Mongolia’s international legal obligations with respect to the issue of immunity (see also Sergey Vasiliev).

Scholars such as Dapo Akande have called the Judgment in the Jordan Referral re Al-Bashir Appeal and its reading of head of state immunity as being “extremely controversial”. However, at present, the Judgment remains the leading authority on how one is to approach the issue of Head of State Immunities via-a-vis the ICC. While it can be argued that states parties to the Rome Statute accept the Statute in its entirety including the provisions of Article 27, questions may be raised when considering the application of this provision to strip away the immunities of a Head of State of a non-ICC member state. These considerations may be especially pertinent given that the arrest warrant against Putin, the head of state of a non-ICC member state, was issued while the Court was exercising its jurisdiction over the situation in Ukraine when Ukraine itself was not a member state to the ICC. Instead, the ICC’s jurisdiction over the situation in Ukraine was triggered by the two Article 12(3) declarations lodged by Ukraine accepting the ad hoc jurisdiction of the Court. 

ICC and the Problem of Enforcement

As demonstrated by former Sudanese president Omar Al Bashir’s visits to Chad, Malawi, South Africa and Jordan (all ICC member states), while an ICC arrest warrant had been issued against him, the enforcement of ICC arrest warrants is highly reliant on the cooperation of states parties. The present example regarding Putin and Mongolia, further highlights this issue. If a member state fails to arrest an individual, despite the presence of an ICC arrest warrant, the Court lacks any effective enforcement mechanism. Some of the provisions contained in the Rome Statute, especially regarding immunities, further complicates issues in terms of arrest. Putin’s visit to Mongolia and the latter’s inaction in executing arrest, might be an opportune moment for the ICC to revisit the issue regarding immunities and the obligations of states parties. A further step would be for the matter to be raised at the next Assembly of States Parties (ASP) meeting in December with the aim of identifying which consequences Mongolia’s non-compliance should give rise to. Inaction by the ASP in the current circumstances would send the wrong message to ICC member states regarding their obligations.