Putin's Visit to Mongolia: What's the Problem

On September 3, Putin is scheduled to visit Mongolia at the invitation of President Ukhnaagiin Khurelsukh. This visit could be his first to a member country of the International Criminal Court (ICC) since the Court issued an arrest warrant for him on suspicion of committing war crimes related to the deportation of Ukrainian children. This visit has the potential to undermine international criminal justice as a whole.

Mongolia's Obligations as an ICC Member

   Mongolia ratified the Rome Statute, the founding treaty of the ICC, on April 11, 2002. It currently has its own judge at the ICC. As with all state parties, Mongolia is responsible for implementing decisions regarding arrest warrants. State parties are obliged to fully cooperate with the ICC (Chapter IX of the Rome Statute). Therefore, when a person subject to arrest is present on the territory of a state party to the Rome Statute, that state must immediately arrest and surrender the individual upon receiving a request from the ICC.

   It is important to understand, however, that the Rome Statute provides for certain exceptions. But can these be applied in the current situation?

   This brings us to the concept of immunities. Article 98(2) of the Rome Statute states that under certain circumstances, states may be exempted from the obligation to arrest if they are forced to “violate contractual obligations” with another country or if it would violate the “diplomatic immunity of a person or property of a third party.” In particular, high-ranking state officials, such as the president, enjoy immunity - they cannot be held liable while in office (personal immunity), as well as after leaving office for actions that are official (state) in nature and were committed during their tenure (functional immunity).

   However, the issue of immunities is resolvable, as the ICC, which handles cases involving acts of aggression, genocide, war crimes, and crimes against humanity committed by the military-political leadership, does not recognize these immunities. All ICC member states are obligated to arrest suspects present on their territory, whether it be Putin, Shoigu (who may also be part of the delegation), or anyone else.

   Yet, there is another important nuance that arises from the above. If there are prior agreements between Mongolia and Russia that would be violated if Mongolia fulfills its obligations to the ICC and arrests Putin, then the Court must first obtain Mongolia's consent to cooperate. Currently, we do not know if such agreements exist between Russia and Mongolia, nor whether the ICC has made such a request.

   Putin's potential visit to Mongolia is particularly interesting to analyze due to the significant number of statements from officials on all sides, including official positions from the ICC and Ukraine's Ministry of Foreign Affairs. Despite the heated discourse, it appears the visit will proceed. This contrasts with the previously discussed potential visits to South Africa or Brazil, where public opinion prevailed.

   This leads us to the most critical aspect: accountability. Beyond condemnation, what consequences does a state face if it ignores its obligations under the Rome Statute? Unfortunately, practically none, at least legally.

   Article 87(7) of the Rome Statute states that if a state party fails to comply with cooperation requests, the Court may refer the matter to the Assembly of States Parties or the UN Security Council for further action. Given that we can’t harbor illusions about the Security Council, where Russia is a member, the only option left is the Assembly. But is such a response proportionate to the violation, and can it restore the Court’s authority, shaken by such actions? I believe it cannot.

What’s the Problem?

   There have been cases in history where international arrest warrants were ignored.

   For example, some countries refused to arrest Sudanese dictator Omar al-Bashir during his visits. Indicted in 2009 for genocide in Darfur, al-Bashir remained in power for another ten years before being overthrown in a coup. Since then, he has been prosecuted in Sudan but has not been handed over to the ICC. While in office, he visited several countries, including ICC member states Jordan, Chad, Djibouti, Kenya, South Africa, and others, which refused to detain him.

   Let’s take a closer look at the situation with Jordan, as this visit sparked perhaps the most significant discussions and reactions.

    In 2017, al-Bashir visited Jordan to participate in an Arab League summit, and, as expected, Jordan did not arrest him. The ICC responded by ruling that Jordan had failed to meet its obligations under the Rome Statute and referred the case to the UN Security Council. Jordan appealed this decision, but unsuccessfully. Here’s a point of interest: according to the ICC’s Appeals Chamber ruling in the al-Bashir case against Jordan in 2019, a head of state has no immunity when the ICC requests a state party to the Rome Statute to arrest and surrender him to another state party.

   The ICC Appeals Chamber ruled that state parties cannot invoke head-of-state immunity as a basis for refusing an ICC request for arrest and surrender, as such immunities do not impede the ICC’s jurisdiction. This precedent, therefore, rules out immunity as a justification for refusing to surrender a suspect. One might then logically ask: what was Jordan’s punishment for violating its obligations? Essentially, none. The decision served more as a reminder to other state parties, and nothing more.

    This brings us to the heart of the issue... Yes, as Ukrainians, it is unsettling to see Putin freely visiting certain countries. But the problem is, in fact, more global. International justice relies on the shared commitment of states to peace and the rule of law. When countries ignore their international obligations, they disrupt the balance of power. A member state's refusal to surrender a suspect to the ICC will primarily harm the authority of the Court and international criminal justice as a whole. This is very advantageous for Russia and some other countries committing international crimes.

    I often emphasize that international criminal justice is still a young field that needs support. It is a crucial tool for global peace, as there must be an independent institution capable of genuinely punishing the most serious international crimes. When Mongolia invites a suspect to celebrations, or Mexico invites them to an inauguration, efforts to build a strong institution are rendered meaningless.

   Therefore, I believe the time has come not only to expand the ICC’s jurisdiction (for instance, regarding the crime of aggression, making it more effective) but also to equip it with truly effective legal tools to respond to non-compliance with the Court’s obligations. International law has always been an area of significant compromises, and this is why we occasionally find ourselves hostage to outdated norms and practices. And this has almost always changed through significant upheavals.

   Unfortunately, the Russo-Ukrainian war, the largest and bloodiest conflict in Central Europe since World War II, is indeed such an upheaval.