What Does Mongolia’s Failure to Arrest Putin Mean? Integrity and the War on International Law

[Jens Iverson is an Assistant Professor of International Law at Leiden University.]

Mongolia is obliged by its treaty obligations to arrest Vladimir Putin if it can.  It could have, but it didn’t.  Why?  The answer lies mainly in politics, but also in the cover created by an academic dispute.  This post attempts to explain the dispute to those who haven’t been following it, and also seeks to frame the dispute in this context with Russia’s current approach to the foundations of international law.  It builds upon Dr. Wanigasuriya’s excellent recent post, which focuses more on the Rome Statute and less on customary international law.

The customary international law regarding the hypothetical immunity of heads of state before international courts and tribunals continues to be disputed by some academics, but it is resolved under current ICC jurisprudence.  The ICC has determined that there is no such immunity.  No international court has ever found such immunity.  Years have passed since this issue has been settled within the Rome Statute system. 

The most high-profile adjudications of the question of third-party head of state immunity before international courts in recent years were the ICC’s findings that certain State Parties to the Rome Statute that created the ICC breached their duty of cooperation by failing to arrest Omar al-Bashir when he visited their territories.  Al-Bashir, like Putin, was at the time the sitting head of state (and head of government).  Sudan, like Russia, was not and is not a State Party to the ICC.  Putin’s visit to Mongolia and al-Bashir’s visits to several State Parties both raise the question of cooperation with the Court, but Putin’s visit places the question of the customary international law of heads of state into sharper relief.

A reasonable argument exists that the states that failed to arrest al-Bashir were wrongful not because of the “ordinary” customary international law status of a visiting head of state, but because of the special situation that resulted from the UN Security Council referring the situation in Darfur to the ICC and ordering Sudan to cooperate.  That argument is essentially irrelevant to this situation because, predictably, the UN Security Council has not made analogous resolutions regarding Russia.

The heart of the question of Putin’s hypothetical immunity from an ICC arrest warrant while visiting Mongolia goes to what states thought they were doing when they established the customary international law norm of head of state immunity before “foreign” courts.  This existence of this norm is unquestioned, it’s just its application that’s contested.  No state can issue an arrest warrant for Putin.  Critics of the ICC’s jurisprudence tend to assume that when this norm crystalized, “foreign courts” meant “all courts that aren’t domestic,” including international criminal courts, which did not yet exist.  Under this understanding, foreign states, having lost their power to exercise their normal jurisdiction over heads of government without waiver of immunity, cannot give to an international court the power they do not currently have. 

But what if there was no explicit consideration of international courts when immunity before foreign courts became binding customary international law?  This is the approach taken by the ICC and other international courts, as well as, implicitly, the majority of states, who remain party to the Rome Statute and do not object to the arrest warrant for Putin.  What if the proper understanding of “foreign” in this context is cabined to foreign states?  International Organizations are not normally thought of as “foreign.”  “Foreign” is generally understood an aspect of states that are not one’s own, equal in sovereignty.  International Courts are seen as acting on behalf of the international community, not as agents of the states that created them.  The International Court of Justice, when it adjudicated the immunity of foreign ministers before foreign courts, limited its analysis to the courts of foreign states and explicitly allowed for jurisdiction before international courts, specifically including the ICC. (Arrest Warrant, e.g. paras. 11-12, 47, 49, 56-57, 59, 61, 63-65, 68.) If states did not have in mind creating a customary international law norm forbidding international courts from exercising jurisdiction over heads of state, then no such customary international law would have been created.  If “foreign” means “foreign” and not “foreign and international,” then for Putin to be immune for the ICC’s arrest warrant, advocates of the existence of an immunity before international courts must show that such an immunity was independently created.  As put by the ICC’s Appeals Chamber in the Judgment in the Jordan Referral re Al-Bashir Appeal (para. 116):

The Appeals Chamber notes further that, given the fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a Head of State, it would be wrong to assume that an exception to the customary international law rule on Head of State immunity applicable in the relationship between States has to be established; rather, the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinion juris. 

The non-arrest of al-Bashir and Putin by a handful of states are insufficient to show the creation of such a new customary norm.  In fact, most states are States Parties to the Rome Statute, and do not appear to support the creation of such a norm. 

“But what of Article 98 of the Rome Statute?” some may say in opposition to the ICC’s jurisprudence on head of state immunity.  Simply put, Article 98 does not move the ball on immunity, it just establishes the playing field.  Should obligations under international law exist, Article 98 limits the Court’s action, but Article 98 does not change those obligations.  It is not evidence of obligations.  As I articulated way back in 2012 — Article 98 has continuing functions regardless of the non-existence of head of state immunity before international courts.

One can reasonably disagree with the ICC’s jurisprudence on this point.  Some of the brightest minds in legal academia do.  But with the greatest of respect, they are not States Parties.  A State Party can use Rule 195(1) to effectively contest an arrest warrant.  So can third states.  The rule states:

 When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court.

To my knowledge, no such notification was provided by Russia or Mongolia. Or any state.  Even if such notification were to be provided, the argument for immunity has not won in court. The arrest warrant stands.

The context of this dispute matters.  This dispute has to be seen in terms of a greater question than an abstract legal argument as to the intent of states centuries agoand its hypothetical application to international criminal courts before any such international courts existed. 

The real context here is this: Russia’s authoritarian ruler is at war with the international legal system because it plays well at home. What will we do about it?

There are better questions than why Putin is acting the way he acts or why Mongolia has failed to act.  What will states who wish to defend themselves and the rule of law do in response?   Will we fight the return to unfixed borders and hungry empires?  Will we seek justice in the only viable venue?  Will we respond to the rank corruption of pledging to a wanted alleged criminal that no court, including presumably domestic courts, can order him arrested because of his wealth and power?  If Mongolia failed to arrest Putin mainly because of “politics,” that is shorthand for the amount of pressure and rewards put on states to defend the integrity of the international legal system — or betray it.

Mongolia should never have invited Putin.  Doing so was a betrayal of its obligations to cooperate with the ICC.  Having done so nonetheless, Mongolian courts should have ordered him arrested, pursuant to their obligations to cooperate under the Rome Statute, even though the value of the current Mongolian government’s assurances to other wanted alleged criminals would be somewhat lessened.  Independent prosecutors within the Mongolian system should have pushed to enforce the international arrest warrant as allowed and required by international law, despite the government’s political pledges. I did not expect them to.  But I do hope that those who care about international legal integrity, and about the humanity that undergirds international criminal law, will double down on the fight to defend the physical borders and legal obligations that are currently under attack.