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Finding Under Art. 87(7) of the Rome Statute on the Non-Compliance by Mong. with the Request by the Ct. to Cooperate in the Arrest and Surrender of Vladimir Vladimirovich Putin and Referral to the Assembly of States Parties (Int'l Crim. Ct. Pre-Trial Chamber II)
Published online by Cambridge University Press: 14 April 2025
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- © The Author(s), 2025. Published by Cambridge University Press on behalf of American Society of International Law
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1 Situation in Ukraine, No. ICC-01/22, Finding under article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin and referral to the Assembly of States Parties (Int'l Crim. Ct. Oct. 24, 2024) [hereinafter Putin (2024)].
2 Putin (2024), ¶ 1. See Press Release, Situation In Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and.
3 See Putin (2024), ¶¶ 2–3.
4 Id. ¶¶ 4–6.
5 Id. ¶¶ 6, 18.
6 Id. ¶ 7.
7 Id. ¶ 8.
8 Id.
9 Id. ¶ 38.
10 Id. ¶ 14. See similarly id., ¶ 21 (citing Vienna Convention on the Law of Treaties art 31, 1155 U.N.T.S. 331 (May 23, 1969, entered into force Jan. 27, 1980).
11 Id. ¶ 20 (emphasis added).
12 Rome Statute art. 27(2).
13 Prosecutor v. Omar Hassan Ahmad al Bashir, No. ICC-02/05-01/09 OA2, Judgment in the Jordan Referral re Al-Bashir Appeal, paras. 103, 122–127 (Int'l Crim. Ct. May 6, 2019) [hereinafter Bashir (2019)].
14 Putin (2024), ¶ 27. See Rome Statute, arts. 86, 89.
15 Putin (2024), ¶¶ 20, 26–27. See Rome Statute, art. 27.
16 Cf. Bashir (2019) ¶¶ 141–144.
17 See also Putin (2024), ¶¶ 34–36 (considering that Article 98(1), which addresses requests for cooperation by the court in view of certain international law immunities, “neither supplements, modifies, nor provides exceptions to article 27(2).”).
18 Id. ¶¶ 27–28.
19 Id. ¶ 28.
20 Id. ¶ 40. See similarly Bashir (2019), ¶ 123 (discussed infra).
21 Putin (2024), ¶ 30.
22 Id. ¶ 33. This “spatial” conceptualization is used to explain the inapplicability of immunity ratione personae before courts and tribunals of an “international” character, in contrast with those of a “domestic” character. See, e.g., Bashir (2019), Joint Conc. Op. of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, ¶ 430 (referring to the “bilateral (or horizontal) obligation of inviolability of the immunity of Mr. Al-Bashir (as Sudan's Head of State).”). For discussion, see Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46 Georgetown J. Int'l L. 1151, 1174–1175 (2015).
23 Putin (2024), ¶ 31.
24 Id. ¶¶ 30–32.
25 Id. ¶ 37.
26 Id. ¶¶ 39–41.
27 Id. ¶ 17.
28 Resolution ICC-ASP/23/Res.1, ¶¶ 34–36 (Dec. 6, 2024).
29 Thomas Weatherall, Prosecutor v. Omar Al-Bashir (Int'l Crim. Ct.), 58 I.L.M. 1177, 1178 (2019). See Thomas Weatherall, Inviolability Not Immunity, 17 J. Int'l Crim. Just. 45 (2019). See contra Bashir (2019) ¶ 97 (“The central issue in this appeal is whether Mr. Bashir, in his capacity as Head of State of Sudan, enjoyed immunity before this Court which Jordan was obligated to respect in the absence of a waiver from Sudan.”).
30 Bashir (2019), ¶¶ 122, 143.
31 See id. ¶¶ 123, 141, 144 (discussed infra).
32 See contra id. ¶ 145 (“there were also no ‘irreconcilable legal obligations’ that Jordan was facing when being asked to arrest and surrender Mr. Al-Bashir to the Court.” (citation omitted)). Under Rome Statute Article 86, states parties are subject to a “general obligation to cooperate” with the court, i.e., to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Such cooperation includes compliance with requests for arrest and surrender pursuant to Article 89. Relatedly, Article 59 provides that “[a] State Party which has received a request for provisional arrest or arrest and surrender shall immediately take steps to arrest the person.”
33 U.N.S.C. Res. 1593, U.N. Doc. S/Res/1593 (Mar. 31, 2005). All states, as well as concerned regional and other international organizations, were “urge[d]” to cooperate fully with the ICC.
34 Bashir (2019), ¶ 144.
35 Mongolia noted the significance of this distinguishing factor: see Putin (2024), ¶ 18.
36 Putin (2024), ¶ 40. Though the Chamber did not use the Latin term of art, obligations erga omnes are defined in these terms: see, e.g., Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, I.C.J. Rep. 1970, p. 3, ¶ 33.
37 Bashir (2019), ¶ 123.
38 See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, I.C.J. Rep. 1970, p. 3, ¶¶ 33–34.
39 Cf. Reservations to the Genocide Convention, Advisory Opinion, I.C.J. Rep. 1951, p. 15, 23.
40 Thomas Weatherall, Duality of Responsibility in International Law: The Individual, The State, and International Crimes (Brill Nijhoff 2022) 39–40, 46–52.
41 PTC II referred to the obligation to cooperate in the arrest and surrender of Putin as both an obligation towards the international community as a whole (erga omnes) as well as an obligation towards other states parties (erga omnes parties). Compare Putin (2024), ¶ 40, with id. ¶ 33. The latter would be the more natural characterization of a treaty-based obligation giving rise to a general legal interest in its performance. It is unclear whether the Chamber intended to suggest that there exists an obligation erga omnes of cooperation under CIL, parallel to Rome Statute Article 86, that is owed to the international community as a whole.
42 See similarly Attorney General & 2 others v. Kenya Section of International Commission of Jurists, Criminal Appeal No. 274 of 2011, Judgment, [2018] eKLR 21 (Ct. of Appeal Feb. 16, 2018) (Kenya) (endorsing this approach).
43 Putin (2024), ¶ 33.
44 Thomas Weatherall, Inviolability Not Immunity, 17 J. Int'l Crim. Just. 45, 70–72 (2019). See, e.g., The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Case No. 867/15, Judgment, [2016] ZASCA 17, [102] (Wallis, JA) (Sup. Ct. of Appeal Mar. 15, 2016) (South Africa).
45 Democratic Alliance v. President of South Africa, et al., Case No. 50604/23, Order, ¶ 1.1 (High Ct. Gauteng Div. July 21, 2023) (South Africa).
46 Id. ¶ 1.2.
47 See Prosecutor v. Omar Hassan Ahmad al Bashir, No. ICC-02/05-01/09-302, Decision under Article 87(7) of the Rome Statute on the Non-Compliance by South Africa with the request by the Court for the Arrest and Surrender of Omar Al-Bashir (Int'l Crim. Ct. July 6, 2017); The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Case No. 867/15, Judgment, [2016] ZASCA 17 (Wallis, JA) (Sup. Ct. of Appeal Mar. 15, 2016) (South Africa).