In the scheme of world politics, international crime is among the variety of pressing issues plaguing society today.[1] The International Criminal Court (ICC) was established by the Rome Statute in 2002 to hold world leaders and war criminals accountable and to combat the most serious crimes.[2] The Rome Statute not only established the ICC but additionally laid out a comprehensive overview of the court’s jurisdiction, procedure, penalties, appeals process, and more.[3] However, the Rome Statute does not have any practicable enforcement mechanisms, rather the ICC must rely on general cooperation from its 124 member countries.[4] In practice, this usually results in limited action from the ICC, because if the member countries refuse or evade cooperation with the treaty, there are no mechanisms to ensure that ICC-designated criminals are held accountable.[5] Member countries of the Rome Statute should commit to enforcing ICC decisions more effectively, as the absence of an enumerated enforcement mechanism requires greater efforts from member states to turn over criminals to the ICC.
The path to the Rome Statute’s formation was riddled with complications and setbacks.[6] The idea for an international court addressing war crimes has been a far-reaching dream as far back as 1872, with a more earnest pursuit happening after the end of World War II. The original international court was created in light of the Holocaust and continued development throughout the decades until the triggering ratification occurred on July 1, 2002.[7] The Rome Statute’s primary purpose is the establishment of the ICC and articulating the jurisdiction, functions, and procedural processes of the court.[8] Article 89, Surrender of person to the Court, is the closest the Rome Statute comes to an enforcement mechanism as it pertains to the arrest of international criminals.[9] Essentially, this article allows for the ICC to request the surrender and arrest of the identified criminal from a member country, and only “request the cooperation” of the member country in honoring the surrender and arrest of the fugitive.[10] Other than the request for cooperation in the detainment of the criminal the ICC has no concrete ability to bring criminals before the court.[11]
The ICC was intended to be a tribunal focused on enforcing accountability for criminals who committed heinous crimes on an international scale.[12] The Court’s jurisdiction spans four categories of crime: genocide, war crimes, crimes against humanity, and crimes of aggression.[13] Intended as a compliment to national courts rather than a replacement, the ICC was established with the best of intentions.[14] The reality is that the ICC’s effectivity is limited due to the lack of enforcement mechanisms for arrests, instead it must solely rely on cooperation from member countries and the international community at large.[15] Unfortunately, the ICC has also struggled gaining support from major international political players, such as Russia, China, and the United States.[16] The combination of the lack of support and the need for cooperation has kept the Court stagnant and ineffective in its current role. Additional criticisms of the ICC have disincentivized member countries from cooperating with ICC-sanctioned arrests, such as their primary focus on African criminals, with little to no explanation as to why they remain a top priority.[17] While the ICC has potential to be a force for good in the international community, it has to have full cooperation from all member countries to achieve this potential.[18]
A prime example of the lack of cooperation is the recent September 2024 visit of Russian President Vladimir Putin to Mongolia for a celebration of a joint USSR/Mongolian victory in World War II.[19] Mongolia is a member country of the ICC and President Putin has had an ICC warrant for his arrest since 2023 for war crimes committed during the invasion of Ukraine.[20] Article 89 of the Rome Statute requests that member countries turn over fugitives to the Court; however, with no police force, the ICC has to rely on Mongolia’s cooperation and good faith adherence to the treaty.[21] Mongolia did not turn over President Putin and therefore violated the treaty without consequences.[22] While Mongolia has presented themselves as a neutral party to most world conflicts, their ratification of the Rome Statute is in direct conflict with their neutrality. As a member country, they are bound to follow treaty and allow for the ICC to take custody of any war cirminals that may enter.[23] This situation highlights the need for countries to undertake active steps towards cooperating with the Rome Statute and the ICC if there is to be any hope for a strong tribunal with the ability to hold world leaders accountable for their crimes.
If countries like Mongolia adhered to the Rome Statute and gave their cooperation to the ICC, leaders who have been charged with war crimes such as President Putin would be held accountable for their actions, and the purpose of the tribunal would be fulfilled.[24] The ICC has been a long-sought after goal. The creation of the ICC took decades, and by not cooperating with the ratified treaty, member countries are laughing in the face of its purpose and function. In the bigger picture of world politics today, accountability for crimes against humanity such as genocide and war crimes are a growing need. If countries cooperated with Article 89 of the Rome Statute, world leaders would be on notice that the international community will not tolerate their heinous actions.
Overall, it is essential for countries to start taking the ICC seriously and fully cooperating with the Rome Statute. World leaders such as President Putin should be put on notice when they enter a member country like Mongolia, that they will be extradited for prosecution. By encouraging cooperation, the ultimate purpose of the ICC would be fulfilled in the absence of an enforcement mechanism for arrests.
[1] Global Governance Mointor, Issue Brief, 1, Council on Foreign Relations, (2021), https://www.cfr.org/global-governance-monitor/#!/crime?printId=4302.
[2] Claire Klobucista & Mariel Ferragamo, The Role of the ICC, The Council On Foreign Regulations, (May 22, 2024, 12:40 P.M. EST), https://www.cfr.org/backgrounder/role-icc. [hereinafter The Role of the ICC]
[3] Rome Statute of the International Court, Preamble.
[4] Id. at art. 86.
[5] Yvonne M. Dutton, Commitment to International Human Rights Treaties: The Role of Enforcement Mechanisms, 34 U. Pa. J. Int’l L. 1 (2012).
[6] Canada’s Human Right Commitments, History of the Rome Statute of the International Criminal Court, (December 3, 2015), https://humanrightscommitments.ca/2015/12/history-of-the-rome-statute-of-the-international-criminal-court/.
[7] Id.
[8] Rome Statute supra note 2.
[9] Part 10: “Enforcement” regards primarily the sentencing and imprisonment of criminals that have been convicted. Rome Statute supra note 2 at art. 89.
[10] Id.
[11] Moses Retselisitsoe Phooko, How Effective The International Criminal Court Has Been: Evaluating The Work and Progress of The International Criminal Court, 1 U. Notre Dame J. Int’l & Comp. L. 1 (2011) [hereinafter Evaluation of the ICC].
[12] Rome Statute, supra note 2, Evaluation of the ICC, supra note 10 at 185.
[13] The Role of the ICC, supra note 1.
[14] Id.
[15] Evaluation of the ICC, supra note 10 at 195.
[16] The Role of the ICC, supra note 1.
[17] Evaluation of the ICC, supra note 10 at 185.
[18] Id.
[19] Christopher K. Tong & Charles Krusekopf, Putin’s visit to Mongolia defies ICC warrant and tests neutral nation’s ‘third neighbor’ diplomacy, The Conversation, (Sept. 2, 2024, 4:40 PM EDT), https://theconversation.com/putins-visit-to-mongolia-defies-icc-warrant-and-tests-neutral-nations-third-neighbor-diplomacy-237942. [hereinafter Putin’s Visit to Mongolia].
[20] Id., Office of the Prosecutor, Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova, Int. Crim. Ct. (March 17, 2023) https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin.
[21] Rome Statute, supra note 2, at art. 89; See Evaluation of the ICC, supra note 10 at 185.
[22] Putin’s Visit to Mongolia, supra note 18.
[23] Id., Rome Statute, supra note 2 at art. 89.
[24] See Evaluation of the ICC, supra note 10 at 195.
