In order to fulfill the International Criminal Court’s (“ICC”) warrants effectively, the court needs to adopt a new policy that does not solely rely on its Member States.
Article 89 of the Rome Statute of the ICC requires Member States to enforce warrants issued by the ICC.[1] Enforcement of warrants include arresting and surrendering a person if the court has issued a warrant for the individual.[2]
This policy is ineffective because it ignores the personal interests of Member States.[3] Abiding by this policy can impact a state’s foreign relations and economic incentives.[4] For example, when the court issued a warrant for Omar Hassan Al-Bashir—Sudan’s head of state—in 2009 for war crimes and crimes against humanity,[5] many Member States did not conform to the policy; they did not arrest and surrender him while present in their territory.[6] When he visited South Africa for the African Union’s (“AU”) conference, the AU encouraged Member States to refuse enforcement of the ICC’s warrant.[7] South Africa followed suit and did not arrest and detain Al-Bashir.[8] Today, the warrant for Al-Bashir remains outstanding.[9]
Another instance of warrant non-enforcement is the warrant on Vladimir Putin—Russia’s head of state—issued in 2023.[10] The ICC issued warrants for Putin and Russia’s Commissioner for Children’s Rights in the Office of the President—Maria Alekseyevna Lovova-Belova—for the war crime of unlawful deportation of children and unlawful transfer of children from occupied areas of Ukraine to Russia.[11] Due to concern of arrest, Putin declined to attend the BRICS summit hosted in South Africa in 2023.[12] South Africa also expressed concern with enforcing the ICC’s policy.[13] Additionally, Putin visited Mongolia since the issuance of the warrant; Mongolia did not arrest or detain him.[14] Arresting and detaining Putin may have put Mongolia’s independence at risk, as they have carefully secured and maintained their sovereignty.[15] Mongolia has utilized its neutral status—being located between Russia and China—to maintain their independence and relationships with both countries.[16] As part of maintaining Mongolia’s sovereignty, economic stability is crucial.[17] Arresting Putin would have contradicted their economic and neutrality objectives.[18] The situation in Mongolia exhibits the disincentives for Member States to enforce ICC-issued warrants.
Due to this prevalent issue of non-enforcement, the ICC must adopt a new policy that does not rely solely on Member States to carry through their warrants and make arrests. First, the ICC could provide economic protections for Member States that enforce warrants. These protections could be used as a buffer to any economic backlash that may occur after enforcement of a warrant. This would help address situations like that of Mongolia, in which the enforcement of the warrant did not align with the state’s economic interests.
An additional approach involves strengthening relationships with regional organizations to improve their enforcement network. The ICC has already started this through established agreements with regional organizations.[19] For example, in 2006, the Court and the European Union entered into an agreement of cooperation and assistance.[20] The Court should continue these efforts and importantly, address tension between themselves and the AU to promote cooperation rather than resistance. In 2017, the AU passed a resolution with a call to action for all Member States to cease cooperation with the ICC’s warrants.[21] The AU’s resistance to the enforcement of the ICC’s warrants significance is exhibited by Al-Bashir’s outstanding warrant.[22] The AU views the ICC’s warrants of African leaders as a method of forcing western influence on African States and undermining their sovereignty goals.[23] The court’s treatment of sovereign immunity involving African leaders has contributed to the delegitimization of the court to states in the AU.[24] To address this, the ICC should focus on addressing the AU’s concerns and work to build a cooperative relationship that enhances the ICC’s enforcement network.
Another potential solution involves opening the enforcement of warrants to non-member states and providing incentives to do so. Possible incentives include development aid or membership status.[25] By involving non-member states in this process, the ICC would enable the Office of the Prosecutor (“OTP”) to develop a trusting relationship with non-member states.[26] Utilizing this solution, both the ICC and non-member states would benefit. The ICC—specifically the OTP—would have access to expansive resources and assistance through partnership with non-member states.[27] Non-member states would benefit through financial assistance, the offer of expanding ICC partnership, and the potential for membership status.[28] A new policy that adds incentives and invites enforcement from non-member states is important to improve enforcement of warrants issued by the ICC.
To achieve effective fulfillment of ICC warrants, the Court should consider expanding their policy beyond sole reliance on Member States for enforcement. The court can achieve this through including economic incentives for Member States, strengthening relations with regional organizations, and opening enforcement up to non-member states.
[1] Rome Statute of the International Criminal Court, art. 89, July 17, 1998, 2187 U.N.T.S. 90. 34 Fordham Int’l L.J. 1584 (2010-2011).
[2] Id.
[3] Rebekah Plueckhahn, Mongolia’s Decision Not to Arrest Putin Was No Surprise, Pursuit (Oct. 18, 2024), https://pursuit.unimelb.edu.au/articles/mongolias-decision-not-to-arrest-putin-was-no-surprise.
[4] Id.
[5] Prosecutor v. Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09-1, Warrant of Arrest (Mar. 4, 2009), http://www.icc-cpi.int/iccdocs/doc/doc639078.pdf.
[6] Moses Retselisitsoe Phooko, How Effective the International Criminal Court Has Been: Evaluating the Work and Progress of the International Criminal Court, notre dame j. int’l & comp. l., vol. 1: Iss. 1, Article 6, (2011) at 183.
[7] Jeremy Julian Sarkin, Will the International Criminal Court (ICC) Be Able to Secure the Arrest of Vladimir Putin When He Travels?, int’l hum. rts l. rev., vol. 12, (2023), at ¶ 13.
[8] Ntombizozuko Dyani-Mhango, South Africa’s Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan’s President Omar Al Bashir, 535 wash. int’l l.j., at 535 (2017).
[9] Sudan (International Criminal Court): Briefing, Security Council Report (Jan. 27, 2025).
[10] Situation in Ukraine: ICC judges issue arrest warrants against Valdimir Vladimirovich Putin and Maria Alekseyevena Lvova-Belova, International Criminal Court (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and.
[11] Id.
[12] Max Du Plessis and Andreas Coutsoudis, The Putin-South Africa arrest warrant saga: A tale of the shrinking world of an accused war criminal, Blog of the European Journal of International Law, (Aug. 18, 2023), https://www.ejiltalk.org/the-putin-south-africa-arrest-warrant-saga-a-tale-of-the-shrinking-world-of-an-accused-war-criminal/.
[13] Id.
[14] Plueckhahn, supra note 3.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Philippe Kirsch, The Role of the International Criminal Court in Enforcing International Criminal Law, 22 AM. u. int’l l. rev. 539, 546 (2007).
[20] Id.
[21] Benedict Chigara & Chidebe Nwankwo, “To be or not to be?” The African Union and its Member States Parties’ Participation as High Contracting States Parties to the Rome Statute of the International Criminal Court, 33 nordic j. hum. rts. 243, 243 (2015).
[22] Id. at 247.
[23] Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, mich. j. int’l l., (Jan. 2020), https://www.mjilonline.org/journal/sovereign-immunity-the-au-and-the-icc-legitimacy-undermined/.
[24] Id.
[25] Nadia Banteka, Mind the Gap: A Systematic Approach to the International Criminal Court’s Arrest Warrants Enforcement Problem, cornell int’l l.j. vol. 49 521, 521 (Fall 2016).
[26] Id. at 546.
[27] Id. at 562.
[28] Id.
