Quod licet Iovi, non licet bovi
The world retains altering, and never all the time for the higher. Now we have witnessed the speedy degradation of many supranational authorized constructions, which have fallen sufferer to their dependence on the desire, funding and values of the so-called collective West. That is true, as an example, for the Worldwide Prison Courtroom (the Hague Prison Courtroom). The nice intentions which guided those that established it twenty years in the past have evidently paved the highway to hell. The additional, the extra so.
Deplorable as it could appear, it’s greater than pure. Suffice it to recollect the historical past of this authorized establishment, which has gone a brief manner from alleged demand to full uselessness on the sting of absurdity, bias and cynicism. It is very important perceive what its present actions are conditioned by, tips on how to react to them and what, in the long run, shall substitute this worldwide physique, which has compromised itself so shortly.
1.
It began ceremoniously, so to say. A longing for justice has all the time united thousands and thousands of individuals on Earth. Historical past holds examples of falling empires, whose rulers in some unspecified time in the future went euphoric as a result of their very own lawlessness, solely to be swept away within the blink of an eye fixed by the favored wrath. But it’s often troublesome to convey the highly effective of this world to justice for crimes towards the general public good and humanity. That’s the reason supranational judicial authorities, not being topic to any nationwide authorities, are endowed with this process.
Institution of worldwide felony tribunals after the Second World Warfare was the primary try in historical past to say the supremacy of regulation on a world scale, to attain justice and actual equality past state, financial and ideological borders. The Nuremberg and Tokyo tribunals dedicated themselves to the duty which the courts of Germany, Japan and their former allies couldn’t have accepted the accountability for.
When the work of the worldwide tribunals ended, authorized students from varied international locations proposed the institution of a everlasting worldwide judicial physique, which may convey to justice these responsible for probably the most violent crimes towards humanity. The lingering Chilly battle impeded these plans. It was solely on the cusp of the Nineties that the thought of a everlasting worldwide felony court docket was revived¹, and in 1998 in Rome the Statute of the Worldwide Prison Courtroom was signed as its constitution doc.
The ICC was established as an impartial worldwide organisation. Its fundamental physique is the Meeting of States Events, which incorporates all member states (125 at current). The Meeting has a Bureau which shall help the Meeting within the discharge of its obligations (artwork. 112(3) of the Rome statute). The primary perform, i.e. bringing to justice those that dedicated the ‘most critical crimes of concern to the worldwide neighborhood as a complete’, is vested within the ICC. The Courtroom consists of 18 judges, elected by the Meeting, the workplace of the Prosecutor, elected by the identical physique, and the Secretariat. The judges perform as a part of the Pre-Trial Chamber, which initiates felony proceedings and points arrest warrants; the Judicial divisions, which think about the case on the deserves; the Appeals division, which opinions claims in respect of acts and choices of the decrease divisions; and the Presidency, which inter alia is chargeable for the ‘correct administration of the Courtroom, except the Workplace of the Prosecutor’ (artwork 38(3) of the Rome Statute). The pinnacle of it’s the President.
Beneath artwork.119 of the Statute, the Courtroom could, by itself movement, decide the admissibility of any case. Thus, the Courtroom is the one and supreme occasion in disputes it’s concerned in, i.e. it performs as a decide in its personal case (which, the truth is, contradicts the nemo judex in propria causa² precept). All judges and different workers of the ICC have worldwide immunity and privileges on the territories of the member states, together with the Netherlands, the place it’s seated.
The ICC has jurisdiction over probably the most critical crimes, particularly genocide, crimes towards humanity and battle crimes. But its jurisdiction is just not common and covers solely crimes dedicated on the territory of its member states or by residents of its member states.³ Other than the abovementioned controversial factors, the Courtroom’s Statute has contained different provisions from the very starting which in lots of instances may render unattainable the enforcement of its choices (they usually have, as we are going to see later).
In any case, in 2002 the ICC Statute was ratified by the required variety of member states and got here into pressure on July 1 of the identical yr. Again then, the state of affairs on this planet was completely totally different from what we will see now. It was clear that approval of the Rome Statute (like every other worldwide treaty) required representatives of greater than 100 nations to hunt mutually acceptable wording, striving for enhancement of the cooperation on this sphere. Persistently advocating full compliance with the UN Constitution, the international locations assumed that any contradictions may very well be step by step eradicated with a concentrate on the important thing ideas of the worldwide regulation enshrined within the UN paperwork. Taking this into consideration, the Russian Ministry of Worldwide Affairs accredited the execution of the Rome Statute within the title and on behalf of the Russian Federation in 2000.
But later the Hague Prison Courtroom displayed its political bias. The ICC itself com- mitted grave violations of the acknowledged ideas of worldwide regulation. In opposition to this political and authorized background, in 2016 Russia determined to not be occasion to the Rome Statute⁴. The U.S. and a number of other different international locations acted in the identical manner. Making an allowance for that China didn’t signal the Rome Statute, three out of 5 everlasting members of the UN Safety Council aren’t events to it.
2.
The worldwide neighborhood positioned critical hopes on the Hague Prison Courtroom at first. But on the very second of its institution it was fairly clear that the authorized construction itself seemed fairly unusual. Its constitution paperwork initially contained a complete row of inconsistencies, the primary of them being clear discrepancies with most vital relevant guidelines of worldwide regulation — primarily with its cornerstone, the UN Constitution, which comprises the basics of the regulation and order within the post-war world. The UN Constitution is to be consulted when creating common treaties between states, in addition to quite a few regional and bilateral agreements.
Article 103 of the UN Constitution stipulates that its provisions shall prevail over provisions of every other worldwide treaty. Based on article 38 of the Statute of the UN Worldwide Courtroom of Justice the primary supply of worldwide regulation are worldwide treaties (basic and particular), worldwide conventions, basic authorized ideas.
But the Rome Statute supplied for its personal hierarchy of sources of worldwide regulation. Based on article 21 of the Rome Statute, the Hague Courtroom shall apply, within the first place, ‘this Statute, Parts of Crimes and its Guidelines of Process and Proof’; and solely within the second place (solely the place applicable), ‘relevant treaties and the ideas and guidelines of worldwide regulation, together with the established ideas of the worldwide regulation of armed conflicts’.
Thus, the internationally established ideas of worldwide regulation below the UN Constitution could also be utilized by the Hague Courtroom below the 1998 Rome Statute solely within the second place, after the Statute and the paperwork adopted by the Meeting and the Hague Courtroom itself. This fashion the established quasi-judicial mechanism was given a leeway within the type of the proper to disregard the UN Constitution and the authorized norms enshrined in it. In reality, this distortion of the stability of the relevant worldwide regulation within the Rome Statute is inadmissible for any sovereign state, together with Russia as a everlasting member of the UN Safety Council.
Moreover, the notion of ‘basic ideas of the felony regulation’ used within the Rome Statute is in its essence improper, because it doesn’t differentiate between the nationwide felony regulation (the US, for instance) and the worldwide regulation relevant to combating cross-border crime.
All this ‘salad bowl of ideas’ was clearly not in compliance with the nationwide pursuits of the Russian Federation (or every other sovereign state). Opposite to the identification typically utilized within the authorized science one ought to differentiate between the Rome Statute, the constitution doc of the ICC, and the treaties entered into by the us and its allies (different superpowers) in the course of the Second World Warfare, ranging from the Moscow declarations signed on 30 October 1943. Extra so {that a} reference to this Declaration of the 4 main states might be present in article 106 of the UN Constitution. The Settlement entered by and between the governments of the us, the USA, Nice Britain and France to strive the Nazi leaders and organisations accused of battle crimes on the London Convention on 8 August 1945 is essentially totally different from the constitution of the Hague Prison Courtroom as properly. When it comes to their worldwide authorized standing, by advantage of the UN Constitution, the abovementioned paperwork are above any doc handed by the Hague Prison Courtroom.
But those that influenced the event of the ICC weren’t the least involved. As an example, flouting of this elementary political and authorized distinction (amalgamation of the previous and the latter below the umbrella time period ‘worldwide felony justice’) characterised the pro-NATO prosecution of the Serbian leaders within the framework of the so-called Worldwide tribunal for prosecuting individuals chargeable for critical violations of worldwide humanitarian regulation dedicated on the territory of the previous Yugoslavia after 1991. Russian research of worldwide regulation have by no means admitted this amalgamation⁵. Examples of such inconsistencies are quite a few.
3.
Consequently the ICC judicial observe raised reliable questions, not solely from authorized students. As time went on the ICC was more and more demonstrating its dependency on political and ideological components which the truth is shall be excluded from its observe. An apparent inclination was developed in the direction of condemning or pardoning solely within the pursuits of the so-called collective West on the idea of its a lot favoured double requirements. Curious as it could appear, this concerned currying favour with quite a lot of states (primarily the USA) which have been fairly dismissive in the direction of the ICC and its observe. It’s understand- ready, as within the West there’s a powerful hierarchy of relations which displayed itself lately within the case of Benjamin Netanyahu, Yoav Gallant and others, when the European international locations being events to the ICC Statute at first voiced their intention to prosecute Israeli leaders however after a troublesome rebuke from Washington began speaking in regards to the ‘distinctive nature’ of the case and refused to prosecute the Israeli officers. Strictly talking, after that the ICC ought to have chosen to dissolve itself, as it’s unattainable to think about a larger contempt.
Basically, in response to the ICC web site, it has thought-about 33 instances in additional than 20 years; some instances are into account, together with these in respect of a number of political and army leaders from Africa (the Democratic Republic of the Congo, Uganda, Sudan, Rwanda, Kenya, Libya, Côte d’Ivoire, Mali, the Central African Re- public). They’re accused of tortures, rape, robberies, bloodbath, kidnapping, destruction of peaceable settlements, abuse of prisoners of battle and civilians, together with girls and kids.
A number of individuals concerned within the trials have been the truth is condemned and imprisoned, primarily speedy perpetrators in a restricted variety of international locations, officers who have been testified towards. Nevertheless, quite a lot of high-ranking battle criminals went unpunished. The Hague Prison Courtroom demonstrated discriminatory blindness and listening to loss of their respect.
Additionally it is evident that for a few years the ICC has totally thought-about the instances of indisputably violent but fairly bizarre leaders of ethnic gangs, serial killers and rapists. As much as their elbows in blood of their compatriots, they nonetheless weren’t highly effective political figures posing hazard to the entire humankind. A query arises: are these ‘warlords’, leaders of conflicting African tribes and different criminals actual ‘worldwide criminals’ the nationwide justice can not deal with?⁶ Was it actually essential to determine such high-priced behemoth because the ICC to restrain and convey them to legal responsibility?
It’s no coincidence that former Chair of the African Union Fee Jean Ping informed journalists that the Courtroom is a toy of declining imperial powers⁷. Opinions unfold that apparently the ICC was solely excited by prosecuting Africans who confronted the Western affect, and used Africa as a laboratory for testing worldwide felony jus- tice⁸. It shouldn’t go unnoticed that again in 2017 the African Union handed a decision calling on all African international locations to stop cooperation with the ICC when it comes to implementing
arrest warrants for African suspects and to collectively withdraw from the ICC⁹. The truth that the ICC is biased and acts within the pursuits of quite a lot of Western international locations refusing to prosecute individuals from the NATO international locations was recognised by representa- tives of assorted continents. Because of this specifically Burundi and the Philippines declared their withdrawal from the Statute¹⁰.
One other factor has attracted consideration as properly. For an ‘unknown’ motive the ICC failed to contemplate occasions within the international locations the place justice, peace and humanism have been nothing in need of a daydream but the place the US and their NATO allies have been advancing their pursuits. Thus, for nearly twenty years (from 2001 to 2021) the NATO forces have been engaged in lively army operations on the territory of Afghanistan, the state which joined the ICC in 2003. Based on media studies throughout all this era they dedicated actions which may very well be considered crimes of war¹¹. But the ICC by no means did that.
One other instance: in November 2017 the then-Prosecutor of the ICC, Fatou Bensouda, utilized to the ICC Pre-Trial Chamber for a permission to provoke investigation of crimes towards humanity and battle crimes dedicated by the Afghan opposition group ‘Taliban’*, battle crimes dedicated by the Afghan authorities safety forces, and battle crimes dedicated on the territory of Afghanistan beginning on 1 Could 2003 by US army personnel and CIA officers. After eighteen months of consideration in April 2019 the Pre-Trial Chamber rejected the request, stating that ‘an investigation into the state of affairs in Afghanistan at this stage wouldn’t serve the pursuits of justice’¹². The Prosecutor appealed to the Appeals Chamber, which in March 2020 reversed the decision¹³, thus enabling the Prosecutor to provoke preliminary investigation, inter alia in respect of battle crimes dedicated in Afghanistan by US army personnel and residents.
This was adopted by a harsh response of the US, which isn’t a member of the ICC, to the very thought of bringing their army personnel and residents to legal responsibility in a global tribunal. In June 2020 US President Donald Trump declared that the ICC’s assertion of jurisdiction over U.S. army, intelligence, and different personnel in the midst of investigating actions allegedly dedicated by these personnel in or referring to Afghanistan ‘constitutes an uncommon and extraordinary risk to the nationwide safety and overseas coverage of the US’¹⁴. Invoking authorities supplied in US regulation the President signed Govt Order 13928, below which the Secretary of State, in session with the Secretary of the Treasury and the Legal professional Basic, is tasked with figuring out any ‘overseas individual’ that, specifically, has immediately engaged within the ICC’s efforts to research, arrest, detain, or prosecute any United States personnel with out the consent of the US, or has materially assisted, sponsored, or supplied monetary, materials, or technological help for, or items or companies to or in help of, any ICC efforts described above. Such individuals might be topic to having property blocked if that property is below U.S. jurisdiction; as well as, they are often denied entry into the US¹⁵. On 2 September 2020 the US imposed private sanctions¹⁶ on the Chief Prosecutor of the ICC, Fatou Bensouda, and Phakiso Mochochoko, the ICC’s Director of jurisdiction, complementary and cooperation division¹⁷.
Ultimately, regardless of the newly obtained proper to provoke investigation of battle crimes and crimes towards humanity dedicated in Afghanistan the brand new ICC Prosecutor has not but charged any US army personnel who participated within the hostilities in Afghanistan.
5 years later, having returned to workplace Donald Trump was fast to reiterate his place in the direction of the ICC. And he didn’t restrict himself to condemnation. On 6 February 2025 the US President signed an Govt Order which imposed sanctions towards the Worldwide Prison Courtroom in response to ‘illegitimate and baseless actions concentrating on America and our shut ally Israel’¹⁸. The US President acknowledged that the conduct of the Courtroom ‘threatens to infringe upon the sovereignty of the US’¹⁹. The US threatened to impose ‘tangible and vital penalties’ on ICC officers, workers, and brokers, in addition to their speedy relations, together with the blocking of property and property and the suspension of entry into the United States²⁰.
It needs to be famous that the primary individual to face sanctions from the newly elected President was Karim Khan, Prosecutor of the ICC, who initiated issuance of an arrest warrant for the Russian President. In his Govt Order Trump, specifically, suspended Karim Khan’s entry into the US, and his property that’s in or here- after comes inside the territory of the US, is blocked²¹.
4.
But it was when it comes to the arrest warrants issued for heads of sovereign states that the ICC reached the top of nonsense and disutility, together with Russia’s President Vladimir Putin in respect of the state of affairs in Ukraine²². Passing such choices the ICC officers have been properly conscious of the truth that they’d by no means convey any sensible end result, saving propaganda penalties clearly within the pursuits of the identical Anglo-Saxon world.
Judges and officers of the ICC undoubtedly shall not be thought-about insane or ignorant. These are skilled legal professionals, who’re properly conscious of the content material of worldwide treaties and the restrict of their authority. But they’ve by no means refused to carry out some ‘ideological put-up job’, particularly when it considerations heads of sovereign states.
Establishing the Hague Prison Court²³ the events to the Rome Statute agreed on a compromise. On the one hand, the Statute stipulates that immunities of the Head of State or one other senior official of the state supplied by the worldwide regulation ‘shall not bar the Courtroom from exercising its jurisdiction over such an individual’ (article 27). However, in the identical doc the Courtroom commits itself to ‘acquiring the cooperation’ of a respective state for the waiver of the immunity of its senior official (article 98).
In reality the Hague Prison Courtroom with none waiver supplied by respective international locations launched the observe of issuing arrest warrants for sure performing heads of sovereign states (non-Western, as a rule). First warrants of this sort have been issued in respect of Sudan’s head of state Omar al-Bashir (in 2009) and Libya’s performing head of state Muammar Muhammad Abu Minyar al-Gaddafi (in 2011). The case towards al-Gaddafi was terminated upon his dying; the arrest warrant for Saif al-Islam al-Gaddafi, his son and companion, the de-facto Prime Minister of Libya, has not been enforced but, the case being on the stage of pre-trial listening to.
As for Omar al-Bashir, Sudan refused to implement the Courtroom’s warrant, stating that it was a ‘political’ doc which contradicted to the nationwide regulation, and the ICC itself didn’t have respective jurisdiction. Nor was the warrant enforced in quite a lot of ICC member states (Malawi, Jordan, Uganda, Chad, the RSA and others) which Omar al-Bashir visited. The authorized positions of a number of international locations from this record have been thought-about by the ICC Judicial Divisions, which largely fashioned the Courtroom’s place on immunities of senior officers of the states which aren’t members of the ICC. The ICC’s opinion on this regard was principally expressed within the resolution of the Appeals Chamber regarding Jordan’s refusal to give up Omar al-Bashir.
Within the opinion of the ICC, ‘no immunities below customary worldwide regulation function in such a state of affairs to bar a global court docket in its train of its personal jurisdiction’²⁴. Thus, in essence, the ICC proceeds from the notion that there isn’t any rule of customary worldwide regulation which might give immunity from arrest and give up of the top of state which is not occasion to the Rome Statute by the state which is a member of the Statute on the idea of the request for arrest and give up issued by the Court²⁵.
Being quite disputable, this and different assertions triggered honest criticism from specialists in worldwide regulation and, naturally, representatives of nationwide justice in varied international locations.
I want to emphasise the next. Regardless of the interpretations of articles 27 and 98 of the Rome Statute, the very problem of arrest warrants by the Hague Prison Courtroom for heads of sovereign states shall be certified as a violation of worldwide regulation, to begin with, the UN Constitution. The explanations are as follows.
First, the UN Constitution provisions prevail over the Rome Statute, because it was talked about earlier.
Second, the precept of sovereign equality of all UN members is the idea of the UN (article 2). The heads of state signify the respective sovereign governments and by advantage of such fundamental supply of worldwide regulation as worldwide conventions they ‘take pleasure in full immunity from jurisdiction in different states, each civil and felony’²⁶. The violation of this by the Hague Prison Courtroom is an offence.
Third, the Hague tribunal’s encroachment on limitation of the sovereignty of a state (in case of Russia, furthermore, a everlasting member of the UN Safety Council) by means of pushing in the direction of an arrest of the top of state, thus impeding the efficiency of respective official capabilities, shall be additionally certified as a violation of worldwide regulation. Initially, by advantage of the primary process of the UN Safety Council being upkeep of worldwide peace and safety (article 24 of the UN Constitution).
Fourth, the Hague Prison court docket ignores the plain undeniable fact that three out of 5 everlasting members of the UN Safety Council aren’t events to the Rome Statute. This resolution was at totally different occasions taken by China, Russia and the USA. Therefore by advantage of article 34 of the 1969 Vienna Conference on the Regulation of Treaties and customary worldwide law²⁷ the Rome Statute shall not create any obligations for the states which aren’t its members (article 34 of the 1969 Conference), together with these introduced by the Hague Prison Courtroom.
Fifth, the ICC officers shall perceive that making an attempt to restrict the actions of the top of state which is a everlasting member of the Safety Council they try and impede the functioning of the UN’s fundamental physique, which is solely chargeable for selling peace. When the worldwide neighborhood is essentially divided and our planet is getting ready to a 3rd world battle, the ICC’s resolution in itself has elevated the worldwide danger. The accountability for this rising risk to humanity lies on particular officers of the Hague Prison Courtroom as properly.
5.
It’s well-known that even earlier than the high-profile ‘political put-up job’ in respect of Russia’s President Vladimir Putin the Hague Prison Courtroom typically needed to run fairly slippery errands of its clandestine puppet masters. After the 2014 coup in Kyiv aided by the USA²⁸, refusal of the folks of Crimea and Donbass to recognise legitimacy of the coup, fixed shelling of Donbass on the course of Kyiv leaders and de- facto genocide of its inhabitants Russia took measures to guard compatriots. Not bothering itself with authorized evaluation of the abovementioned info and the relevant regulation the Hague Prison Courtroom obligingly supported the ‘authorized battle’ towards our nation waged by the US and their satellites. A really contentious time period, the ‘aggression’, went into play. By the best way, it was included within the ICC jurisdiction solely after perennial discussions. By the point the Rome Statute was signed in 1998 the events had not managed to develop a legally acceptable definition of the time period ‘aggression’. This problem was submitted to the Meeting, which in 2010 drafted amendments into the Statute. These included definition of a circle of individuals chargeable for this crime and the process of bringing them to legal responsibility within the Hague Prison Courtroom. But the authorized requirements launched weren’t common.
Pressurised by the US the Particular Navy Operation to defend Donbass within the paperwork of the UN Basic Meeting was referred to as ‘aggression’ by the arithmetic majority of states (United Nations Basic Meeting Decision ES-11/1 ‘Aggression towards Ukraine’ dated 2 March 2022; United Nations Basic Meeting Decision ES-11/2 ‘Humanitarian penalties of the aggression towards Ukraine’ dated 24 March 2022 and different paperwork of the UN Basic Meeting). Contribution was made by different organisations below Western management, particularly the Worldwide Financial Fund (the IMF)²⁹, the Institute of Worldwide Law³⁰ and others. Lastly, in March 2023 the Hague Prison Courtroom obediently introduced the issuance of arrest warrants for the President of the Russian Federation and the Russian Commissioner for youngsters’s rights.
From the authorized standpoint this transfer didn’t face up to any criticism. The Western international locations use the time period ‘aggression’ purely formally, within the that means assigned to it within the decision of the 1974 UN Basic Meeting. Based on the decision, aggression is ‘… using armed pressure by a State towards the sovereignty, territorial integrity or political independence of one other State, or in every other method inconsistent with the Constitution of the United Nations…’ which ‘…provides rise to worldwide accountability’³¹ (emphasis added). Making use of this definition to the Particular Navy Operation, the Western states ignore main problems with the very fact and regulation, to begin with, the abovementioned upheaval in Kyiv in 2014 impressed by Washington, which was in apparent violation of article 2 (7) of the UN Constitution (on non-interference right into a state’s inner affairs). After this coup d’état Ukraine de facto was not a sovereign state.
One other circumstance ignored by the West as a complete is that using armed forces permissible below the worldwide regulation (by means of self-defence, together with preventive) is just not aggression. But the primary flaw within the worldwide authorized place of the Western states is extra critical: they ignore the truth that in response to the UN Constitution establishing the reality of ‘aggression’ and taking respective actions is solely the prerogative of the UN Safety Council, together with affirmative vote of its 5 everlasting members, however not one other physique, be it with the UN or not, or one other worldwide organisation.
Nevertheless, the states that are nonetheless events to the Rome Statute didn’t implement the ICC’s resolution as properly. Russia’s President visited considered one of these international locations, Mongolia, early September 2024³². The go to proceeded in a heat and pleasant ambiance and ended fairly efficiently. The Hague Prison Courtroom received nearly hysterical. It instantly cracked down on Mongolia, stating that it failed to satisfy its commitments below the Rome Statute because it had not arrested Russia’s President, thus failing to adjust to the ICC’s cooperation request.
Based on the ICC, events to the Rome Statute shall arrest individuals for whom the Courtroom has issued warrants, ‘regardless of their official standing or nationality’. On this context the assertion made by the ICC that it performs its capabilities in respect of ‘gross violations of the basics of worldwide regulation’³³ sounds fairly cynical. But interfering with the official duties of the top of a sovereign state which is a everlasting member of the Safety Council the officers of the Hague Prison Courtroom irritate the chance of failure to cross choices when it comes to the us reacting to threats to world peace.
Within the doc of the Hague Prison Courtroom accusing Mongolia of non-compliance by Mongolia with the request to cooperate below the Rome Statute it’s acknowledged that article 98(1) allegedly doesn’t amend article 27(2) or present for any exceptions, i.e. within the Courtroom’s opinion, the Statute doesn’t present for ‘the waiver of the immunity’ for heads of sovereign states. Based on the Courtroom, every other interpretation would render the obligations of member states ‘mindless’ and the general Courtroom’s system ‘futile’, ‘opposite to the precept of effectiveness (ut res magis valeat quam pereat)’³⁴, stemming from article 31 of the Vienna Conference on the Regulation of Treaties, ‘in response to which treaties needs to be interpreted in order to make sure their efficient implementation’³⁵. ‘Futility’ is to not be disputed. The Hague Prison Courtroom has displayed this high quality over and over.
As for the effectiveness precept, it needs to be mentioned that the argument given by the Courtroom is distorted. In the midst of interpretation of worldwide treaties an interpreter ‘should give that means and impact to all of the phrases of the treaty’ and ‘an interpreter is just not free to undertake a studying that may lead to decreasing entire clauses or paragraphs of a treaty to redundancy or inutility’³⁶.
It needs to be talked about that earlier the ICC recognised that there’s an ‘inherent rigidity’ between articles 27(2) and 98(1) of the Statute³⁷, this rigidity being substantively analysed within the doctrine³⁸. All of the abovementioned clearly demonstrates authorized and technical flaws within the Statute³⁹, which make this already imperfect instrument completely inapplicable.
In its Resolution on Mongolia the ICC Pre-Trial Chamber acknowledged that article 34 of the Vienna Conference ‘is irrelevant to the matter at hand (whether or not the non-member events are sure by the Statute – comment), for the reason that Courtroom is just not aiming to impose obligations contained within the Statute to non-States Events, however is quite in search of the cooperation of States Events in instances towards people who allegedly dedicated crimes below article 5 of the Statute on the territory of a State the place the Courtroom has jurisdiction’. But this place is invalid as properly: non-provision of immunity by occasion to the Statute to the top of state which isn’t occasion to the Statute is extension of the Statute to such state, because the latter has the proper to say immunities for his or her senior officers, whereas the host nation has the duty to grant such immunities. If the latter doesn’t try this by advantage of article 27.2 of the Statute, it shall both be thought-about to be in violation of customary worldwide regulation or extending the rule of article 27.2 of the Statute to the third state and its senior officers. There isn’t a third manner.
The ICC displayed vital self-confidence when confirmed that ‘any controversial bilateral obligation that Mongolia could owe to the Russian Federation to respect any relevant immunity that worldwide regulation could enable to Heads of State is just not able to displacing the duty that Mongolia owes to the Courtroom, which is tasked with exercising its jurisdiction…⁴⁰. That’s true: any worldwide acts are inferior to the Statute, within the opinion of the biased commentators from the Courtroom.
In its correspondence with the Hague Prison Courtroom Mongolia referred to the customary authorized rule of immunities of the heads of states and the Worldwide Courtroom of Justice’s (‘ICJ’) judgment within the Arrest Warrant case as of 11 April 2000, which confirmed its existence. In response the Hague Courtroom reiterated its place: ‘whereas private immunities function in relations between States, they don’t shield people, together with Heads of State, from prosecution by worldwide felony courts’, justifying this by stating that the ICC ‘is inherently impartial of States, strictly neutral and acts within the basic pursuits of the worldwide neighborhood’⁴¹.
All these arguments are completely politicised and legally null and void. However, the Courtroom pathetically acknowledged that Mongolia prevented the Courtroom ‘…from exercising its capabilities and powers…’ and ‘didn’t adjust to its worldwide obligations below the Statute…’⁴², thus rejecting all Mongolia’s objections.
It needs to be talked about that below article 98.2 of the Rome Statute ‘the Courtroom could not proceed with a request for give up which might require the requested State to behave inconsistently with its obligations below worldwide agreements pursuant to which the consent of a sending State is required to give up an individual of that State to the Courtroom, except the Courtroom can first get hold of the cooperation of the sending State for the giving of consent for the give up’. The 2019 Treaty on Pleasant Relations and Complete Strategic Partnership between the Russian Federation and Mongolia (entered into pressure in September 2020) is relevant on this sense. Based on article 4 of this treaty Russia and Mongolia shall ‘abstain from participation in any actions or help of such actions directed towards the opposite occasion’.
All this judicial fuss didn’t have any vital penalties for Mongolia or Russia. The ICC Meeting decides itself on the measures to be taken towards the ‘disobedient’. The Statute doesn’t present for any sanctions towards a member state which did not comprehensively cooperate with the ICC in the midst of exercising its capabilities. In observe such sanctions have by no means been imposed. The pinnacle of Sudan Omar al-Bashir in seven years after the ICC issued its first arrest warrant in 2009 visited greater than 20 international locations, together with the ICC members, but in none of them was he arrested⁴³. No measures have been taken towards these states, though the arrest warrant for Omar al-Bashir was issued within the framework of the case initiated by the UN Safety Council (which, not like the ICC, has the proper to use worldwide authorized sanctions).
This proves to what extent the Courtroom and its choices are futile. However, one shouldn’t underestimate the scope and attainable penalties of the ‘authorized battle’ the Western international locations proceed to struggle towards Russia utilizing worldwide justice, together with different hostile actions and illegal restrictions. In essence, the ICC observe is sort of able to legally justify kidnapping officers who take pleasure in immunities from the territories of the international locations which aren’t events to the Rome Statute, extra in order that the ICC has not solely turn into a funnel wherein any official of any state could also be drawn, in case there’s a political order, but additionally a commonplace device of political battle. To say nothing of arrest warrants for Vladimir Putin and Maria Lvova-Belova, the state of affairs with the start of the ICC’s investigation into the state of affairs within the Republic of the Philippines and the resultant arrest on 11 March 2025 and give up to the ICC of the ex-President of the Philippines Rodrigo Duterte is sort of exemplary.
On 15 September 2021 the Pre-Trial Chamber authorised the ICC Prosecutor’s in- vestigation of the state of affairs within the Republic of the Philippines in respect of crimes which fall below the ICC jurisdiction which allegedly have been dedicated within the nation between 1 November 2011 and 16 March 2019 within the framework of the so-called ‘battle on medicine’ campaign⁴⁴. This resolution and additional occasions are exceptional within the following respect. First, the ICC didn’t have jurisdiction ratione temporis in respect of this example usually, because the investigation was authorised by the Chamber on 15 September 2021, whereas the Philippines withdrew from the Statute on 17 March 2019. Nevertheless, this didn’t stop the ICC judges from discovering the idea for this jurisdiction close to its personal observe of interpretation of artwork.127 of the Rome Statute⁴⁵ basing on the precept of ‘if you would like it, you may’. Second, the arrest and give up to the ICC of the ex-President of the Philippines Rodrigo Duterte weren’t the popularity of the ICC jurisdiction by the Philippines, not a celebration to the Statute, however a give up by the Marcos clan (Ferdinand Romualdez Marcos Jr. is the present President of the Philippines) of their political opponent from the Duterte clan⁴⁶, i.e. the ICC the truth is turned a device of clan rivalry within the territory of the Philippines. Thus, media opinion that the authorization of the investigation within the Philippines is ‘casting a darkish shadow on the flexibility of the court docket to do its job independently’⁴⁷ fairly precisely displays the transformation of the very essence of the Courtroom: from an instrument of justice it has changed into an instrument of soiled politics.
It’s unclear what lawlessness we are going to witness additional on. The West, which is shortly shedding its positions on this planet and isn’t capable of impose its will on nearly all of the humankind, goes for broke and can cease at nothing. This hazard shall be considered. I, for one, have already speculated on what could observe the enforcement of an unlawful resolution of the ICC in respect of the top of state which isn’t occasion to the ICC. The very enforcement of such resolution could also be thought-about as casus belli in respect of the international locations which participated in it. It’s unnecessary to debate how harmful such choices could also be in respect of the top of state of a nuclear energy and everlasting member of the UN Safety Council. To say nothing of the truth that individuals in command of such choices could and shall be prosecuted by investigative and judicial our bodies of the nation the top of which is illegally dropped at legal responsibility.
6.
It needs to be remembered that amongst international locations which accuse Russia of ‘aggression’ aren’t solely the USA⁴⁸. Comparable pronouncements have been made by the NATO member states⁴⁹, in addition to most members of the Council of Europe and the seven most superior economies, G7⁵⁰. The African union joined the efforts to accuse Russia of violating the worldwide regulation, encroachment of ‘territorial integrity and nationwide sovereignty of Ukraine’⁵¹.
But one shouldn’t be glad that resolutions of the UN Basic Meeting aren’t formally legally binding. In observe in financial arbitration and judicial proceedings towards Russia and Russian residents references to such paperwork are vital for the ‘internal conviction’ of the decide or arbitrator.
Even ungrounded accusations require exhaustive reply. On this respect I think about it essential to reiterate our place in respect of the so-called ‘aggression’ of which the West persistently accuses Russia, and the ICC actions as makes an attempt to provide authorized impact to those accusations.
Allow us to summarise the above.
First. After the upheaval in 2014 the facility in Kyiv was taken by a dependent political regime below full management of the Western international locations. A part of former Ukraine, intoxicated and managed by it, de facto is not a sovereign state. Due to this fact, Russia’s defence of Donbass, which didn’t recognise the coup and was attacked by the unlawful 2014 Kyiv authorities, can’t be legally certified as ‘aggression’.
Second. Beneath the UN Constitution establishing the very fact of ‘aggression’ and performing on this respect is the prerogative of the UN Safety Council (together with affirmative vote of 5 states that are its everlasting members). No different physique, be it with the UN or not, or one other worldwide organisation have such powers. Their statements aren’t legally grounded and null.
Third. Encroachment of the Hague Prison Courtroom on limiting sovereignty of a state which is a everlasting member of the UN Safety Council (calls for of the arrest of the top of this state, thus interfering with the official capabilities) is to be certified as an offence towards worldwide regulation. Firstly as a result of the UN Safety Council bears main accountability for upkeep of worldwide peace and safety (article 24 of the UN Constitution).
Fourth. Russia is just not occasion to the Rome statute of 1998, on the idea of which the Worldwide Prison Courtroom was established. In 2016 Russia refused to be occasion to this worldwide treaty. Due to this fact, the Statute doesn’t create any obligations for our nation.
Fifth. The actions of the Hague Prison Courtroom and its place contradict to the precept of ‘pacta tertiis nес nocent nес prosunt’ (a treaty doesn’t create obligations or rights for a 3rd state with out its consent) enshrined in customary worldwide regulation and article 34 of the 1969 Vienna Conference on the Regulation of Treaties.
Sixth. Based on the Rome Statute, the thought behind issuing an arrest warrant is that the ICC requires a possibility to additional oblige the Statute member states, specifically, to arrest the individual for whom the warrant has been issued and give up this individual to the Courtroom (article 58 of the Rome Statute). But in case this individual enjoys immunity as an official of the state which isn’t occasion to the Statute, and the Hague Prison Courtroom has not solicited help from such state, issuance of such a war- rant and the Courtroom’s request to a member state to arrest the abovementioned individual contradict to article 98 of the Statute.
Seventh. The President of the Russian Federation, being the present head of a sovereign state, is totally immune from overseas felony justice: each ratione materiae⁵² and ratione personae⁵³. In case there isn’t any specific waiver of this immunity the worldwide judicial our bodies haven’t any jurisdiction over the top of the sovereign state.
Eighth. Based on the judgment of the worldwide Courtroom of Justice dated 14 February 2002 within the case ‘Arrest Warrant of 11 April 2000’, ‘in worldwide regulation it’s firmly established that, as additionally diplomatic and consular brokers, sure holders of high-ranking workplace in a State, such because the Head of State, Head of Authorities and Minister for Overseas Affairs, take pleasure in immunities from jurisdiction in different States, each civil and felony’⁵⁴. The truth that this rule of worldwide regulation operates additionally in instances when there come up a query of risk of arrest the top of the state which isn’t occasion to the Rome Statute by a state which is occasion to the Rome Statute is recognised within the doctrine as well⁵⁵. Furthermore, in a single case the ICC recognised the very fact there aren’t any exceptions to this rule in respect to the conditions when the state operates in its name⁵⁶.
Article 27 of the Rome Statute, within the that means of which immunities of an official shall not impede jurisdiction in respect of this individual, contradicts to the established customary worldwide regulation. That this doc permits for felony prosecution of cur- lease heads of sovereign states doesn’t adjust to elementary ideas of worldwide regulation enshrined within the UN Constitution, firstly, the precept of the sovereign equality of all its members, non-involvement into within the inner politics of one other state.
Ninth. As of February 2025 125 states are events to the Rome Statute⁵⁷ (within the UN there are 193 members)⁵⁸. Regardless of their quantity, the ICC doesn’t signify the worldwide neighborhood of states as a complete and doesn’t act in its title. Three out of 5 everlasting members of the UN Safety Council aren’t events to it (Russia, China and the USA), together with industrialised and densely populated Asian international locations (India, Pakistan, Turkey, Malaysia, Indonesia), many Arab countries⁵⁹.
Tenth. Judges, prosecutors and different officers who took illegal choices could and shall be prosecuted for crimes stipulated in the Russian felony regulation.
7.
In respect of the place acknowledged above an affordable query arises: what’s in retailer for the worldwide felony justice usually? Russian legal professionals ought to voice complete and well-based skilled criticism of the ICC choices in any respect boards. They need to current worldwide authorized place of Russia in respect of the Particular Navy Operation, Ukrainian battle and different related difficult points to the worldwide authorized neighborhood, media and folks in numerous international locations. They need to make clear controversies, and try this actively and incessantly. They need to reiterate our dedication to the UN Constitution and to begin with ideas of sovereign equality of all states, non- interference with their inner affairs. They need to guarantee certain that particular officers of the Hague Prison Courtroom who violate these ideas be taken to legal responsibility in accordance with worldwide and Russian nationwide regulation.
It appears fully attainable to develop on the regional degree (as an example, within the framework of BRICS) an idea of building a global authorized physique as a substitute for the Hague Prison Courtroom. This new judicial physique in BRICS may reiterate the widespread dedication of its member states to the UN Constitution ideas, together with the ideas of immunity of heads of sovereign states from any overseas jurisdiction and non-interference into inner affairs of the states, together with by means of illegal overseas instructing of opposition leaders.
As for the ICC, sadly, at this level we have to recognise its whole inefficiency in performing its fundamental process – bringing to legal responsibility all these responsible of genocide, aggression, battle crimes, those that escaped punishment below nationwide regulation. All of them, together with residents of Western international locations and NATO member states. After all, it’s uncertain that the Hague Prison Courtroom in its current kind and position will make efforts to this finish. That’s the reason it shall sink into oblivion.
But a thirst for justice that unites all folks on this planet is stronger than any sanctions, strain, hypocrisy and lies. And the worldwide regulation developed by the worldwide neighborhood is stronger than the rule of pressure. If the Hague Courtroom is irreversibly flawed at current, the states will discover a possibility to determine a distinct inter- nationwide felony court docket which might be spared of those flaws. Its constitution shall be primarily based upon all universally recognised guidelines of worldwide regulation, together with the rule of absolute immunity of senior officers. Its jurisdiction could also be prolonged to the crimes of genocide, battle crimes, crimes towards humanity, and terrorist assaults. Such assaults are sometimes pre- pared and dedicated on the territories of two or extra states. Worldwide cooperation within the framework of this new physique will be capable to stop them.
There’s a hope that this new court docket will be capable to attain the objectives declared within the Rome Statute of the ICC which the ICC itself proved unable to achieve.
¹ See: Schabas W. A. Chapter 1: The dynamics of the Rome Convention in The Elgar Companion to the Worldwide Prison Courtroom. Ed. by M. deGuzman and V. Oosterveld. Cheltenham; Northampton: Edward Elgar Publishing Restricted, 2020. P. 4–5. See additionally: Summaries of the Work of the Worldwide Regulation Fee: Draft code of crimes towards the peace and safety of mankind (Half II) — together with the draft Statute for a global felony court docket // Worldwide Regulation Fee. Out there at: https://authorized.un.org/ilc/summaries/7_4.shtml (accessed: 03.02.2025); Worldwide felony accountability of people and entities engaged in illicit trafficking in narcotic medicine throughout nationwide frontiers and different transnational felony actions: Institution of a global felony court docket with jurisdiction over such crimes // World Authorized Info Institute. Out there at: http://www.worldlii.org/int/different/UNGA/1989/52.pdf (accessed: 03.02.2025).
² “Nobody is decide in his personal case” (In Latin).
³ Many publications have been written in regards to the ICC. For the latest publications see: The Previous, Current and Way forward for the Worldwide Prison Courtroom. Ed. by A. Heinze, V. E. Dittrich. Brussels: Torkel Opsahl Educational EPublisher, 2021. XXI, 783 p.; Commentary on the Regulation of the Worldwide Prison Courtroom: The Statute. Vol. 1. Eds.: M. Klamberg, J. Nilsson, A. Angotti. 2nd ed. Brussels: Torkel Opsahl Educational Epublisher, 2023. 1104 p.
⁴ See: Order of the President of the Russian Federation No. 361-rp dated 16.11.2016 “On the intention of the Russian Federation to not be occasion to the Rome Statute of the Worldwide Prison Courtroom” // President of Russia. Out there at: http://www.kremlin.ru/acts/financial institution/41387 (accessed: 04.02.2025). Additionally see the communication of the federal government of the Russian Federation to the UN Secretary Basic obtained 30.11.2016: Rome Statute of the Worldwide Prison Courtroom: Rome, 17 July 1998: [status as at: 14.02.2025 10:15:47 EDT] // United Nations Treaty Assortment. Out there at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en#9 (accessed: 14.02.2025).
⁵ See, for instance: Worldwide Regulation and the Struggle towards Crime / pref. A. V. Zmeevskii, Yu. M. Kolosov. M., 1997. (In Russian)
⁶ W. Schabas writes in regards to the ICC as follows: “Solely few concluded instances matter. Lots of these accused have been insignificant individuals in little-known conflicts. With sentences of 12 or 13 years in jail it’s onerous to consider that the Courtroom offers with ‘those that bear biggest accountability’ for ‘most critical crimes of concern to the worldwide neighborhood as a complete’‘ (Schabas W. A. Op. cit. P. 19).
⁷ Bosco D. Why is the Worldwide Prison Courtroom selecting solely on Africa? (March 29, 2013) // The Washington Put up. Out there at: https://www.washingtonpost.com/opinions/why-is-the-international-criminal-court-picking-only-on-africa/2013/03/29/cb9bf5da-96f7-11e2-97cd-3d8c1afe4f0f_story.html (accessed: 04.02.2025).
⁸ See: Bachmann S.-D. D., Sowatey-Adjei N. A. The African Union-ICC Controversy Earlier than the ICJ: A Manner Ahead to Strengthen Worldwide Prison Justice? // Washington Worldwide Regulation Journal. Vol. 29. 2020. No. 2. P. 249.
⁹ Ibid. P. 249–250.
¹⁰ The Philippines’ membership within the ICC involves an finish // Coalition for the Worldwide Prison Courtroom. Out there at: https://coalitionfortheicc.org/information/20190315/philippines-leaves-icc#:~:textual content=Aspercent20ofpercent2017percent20Marchpercent2Cpercent20the,afterpercent20Burundipercent20withdrewpercent20inpercent202017 (accessed: 04.02.2025).
¹¹ For battle crimes in Afghanistan in additional element, see: Ning Y. How US evades accountability for battle crimes in Afghanistan // World Occasions. Out there at: https://www.globaltimes.cn/web page/202109/1235240.shtml (accessed: 14.02.2025).
¹² Pre-Trial Chamber II: State of affairs within the Islamic Republic of Afghanistan, No. ICC-02/17 // Worldwide Prison Courtroom. Out there at: https://www.icc-cpi.int/court-record/icc-02/17-33 (accessed: 04.02.2025).
¹³ The Appeals Chamber: State of affairs within the Islamic Republic of Afghanistan, No. ICC-02/17 OA4 // Worldwide Prison Courtroom. Out there at: https://www.icc-cpi.int/CourtRecords/CR2020_00828.PDF (accessed: 04.02.2025).
¹⁴ Worldwide Prison Courtroom: U. S. Sanctions in Response to Investigation of Warfare Crimes in Afghanistan // Congressional Analysis Service. Out there at: https://crsreports.congress.gov/product/pdf/IN/IN11428 (accessed: 04.02.2025).
¹⁵ Worldwide Prison Courtroom: U. S. Sanctions in Response to Investigation of Warfare Crimes in Afghanistan // Congressional Analysis Service. Out there at: https://crsreports.congress.gov/product/pdf/IN/IN11428 (accessed: 04.02.2025).
¹⁶ Political and authorized students haven’t reached consensus over the time period ‘sanctions’ (see: Pyatibratov I. S. Sanctions and unilateral restrictive measures: The issue of delineation of phrases and identification of phenomena Gumanitarnye nauki. Vestnik Finansovogo universiteta. 2020. Vol. 10, no. 6. P. 64. (In Russian)). However, using “sanctions” in respect of restrictive measures taken by states unilaterally and not using a respective resolution of the UN Safety Council has been repeatedly criticised by some students (see, as an example: Ryzhova M. V. Financial sanctions in fashionable worldwide regulation PhD in Regulation thesis summary Kazan. P. 8. (In Russian); Kritskiy Okay. V. The phrases “worldwide sanctions” and “unilateral restrictive measures”. Moskovskii zhurnal mezhdunarodnogo prava. 2016. No. 2. P. 2. (In Russian); Kritskiy Okay. V. Sanctions and unilateral restrictive measures in fashionable worldwide regulation PhD in Regulation thesis Moscow. P. 10. (In Russian); Alekseeva D. G., Alimova Y. O., Barzilova I. S. Regulation below sanctions / M. V. Mazhorina, B. A. Shakhnazarov (eds). Moscow, Prospekt Publ. P. 93–94. (In Russian). This criticism is justified: whereas the time period “sanction” is seen as a coercive measure utilized within the case of an offence, i.e. a lawful measure, restrictive measures utilized by states unilaterally and not using a resolution of the UN Safety Council aren’t all the time lawful. On this respect, it’s a minimum of inaccurate to name the latter ‘sanctions’ within the authorized sense. It’s no coincidence that coercive measures adopted by the UN Safety Council are sometimes referred to as ‘sanctions’ in UN paperwork, whereas regimes created by these measures are referred to as ‘sanctions regimes’ (see: Doc A/56/10: Report of the Worldwide Regulation Fee on the work of its fifty-third session (23 April – 1 June and a pair of July – 10 August 2001) // Yearbook of the Worldwide Regulation Fee. 2001. Vol. II. P. 2. p. 78; Decision 2170 (2014), adopted by the Safety Council at its 7242nd assembly, on 15 August 2014 (S/RES/2170). Out there at: https://digitallibrary.un.org/document/777420/recordsdata/S_RES_2170percent282014percent29-RU.pdf?ln=ru (accessed: 06.03.2025); Subsidiary Organs of the United Nations Safety Council // Truth Sheets. Out there at: https://fundamental.un.org/securitycouncil/websites/default/recordsdata/subsidiary_organs_series_7sep23_.pdf (accessed: 06.03.2025)). Quite the opposite, in sure UN acts the time period ‘sanctions’ is just not used to discuss with unilateral coercive measures (see, as an example, Decision “Human rights and unilateral coercive measures”, adopted by the Basic Meeting on 19 December 2016 (A/RES/71/193). Out there at: https://digitallibrary.un.org/document/857550/recordsdata/A_RES_71_193-RU.pdf?ln=ru (accessed: 06.03.2025)). However, in political and journalistic discourses such measures are typically known as “sanctions” (see: Gevorgyan Okay. “Unilateral Sanctions” and Worldwide Regulation // The Worldwide Affairs. Out there at: https://interaffairs.ru/jauthor/materials/720 (accessed: 06.03.2025). (In Russian)). On this article, for the sake of comfort, the time period “sanctions” is used inter alia to outline unilateral coercive measures utilized by states and not using a resolution of the UN Safety Council.
¹⁷ Blocking Property of Sure Individuals Related to the Worldwide Prison Courtroom Designations // Workplace of Overseas Property Management. Out there at: https://ofac.treasury.gov/recent-actions/20200902 (accessed: 05.02.2025); US imposes sanctions on prime worldwide felony court docket officers // The Guardian. Out there at: https://www.theguardian.com/regulation/2020/sep/02/us-sanctions-international-criminal-court-fatou-bensouda (accessed: 05.02.2025). Later Govt Order N 13928 was repealed (see: Govt Order 14022 of April 1, 2021 “Termination of Emergency With Respect to the Worldwide Prison Courtroom” // Federal Register. Out there at: https://ofac.treasury.gov/media/57411/obtain?inline (accessed: 05.02.2025)).
¹⁸ Imposing Sanctions on the Worldwide Prison Courtroom: Govt order, February 6, 2025 // The White Home. Out there at: https://www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/ (accessed: 14.02.2025).
¹⁹ Ibid.
²⁰ Ibid.
²¹ Ibid.
²² State of affairs in Ukraine: ICC judges problem arrest warrants towards Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova // Worldwide Prison Courtroom. Out there at: https://www.icc-cpi.int/information/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and (accessed: 05.02.2025). Additionally see: Issues of Legality of the Worldwide Prison Courtroom: Issues of Legality of the Worldwide Prison Courtroom (Opinion of the Worldwide Regulation Advisory Board below the Ministry of Overseas Affairs of the Russian Federation), // Ministry of Overseas Affairs of the Russian Federation. Out there at: https://www.mid.ru/ru/foreign_policy/legal_problems_of-international_cooperation/1949021/ (accessed: 05.02.2025); Opinion of the Worldwide Regulation Advisory Board below the Ministry of Overseas Affairs of the Russian Federation: Issues of Legality of the Worldwide Prison Courtroom [translated by grad. students V. V. Pchelintseva and A. M. Korzhenyak) // Moscow Journal of Inter- national Law. 2024. no. 2. P. 92–104.
²³ Being the main subjects of international law, the states may on the basis of treaties between them establish a derivative subject of international law, for instance, an intergovernmental organisation, an international judiciary etc. The competence of this derivative subject is defined by the states which established it. See: Shaw M. N. International Law. 6th ed. New York: Cambridge University Press, 2008. P. 1303. In this respect J. Klabbers rightfully said about international organisations: “Organisations are creatures of their member states…” (Klabbers J. International Law. 2nd ed. Cambridge: Cambridge University Press, 2017. P. 92).
²⁴ The Appeals Chamber: Situation in Darfur, Sudan: in the Case of the Prosecutor v. Omar Hassan Ahmad Al-Bashir: Judgment in the Jordan Referral re Al-Bashir Appeal, No. ICC-02/05-01/09 OA2, 6 May 2019, para. 114 // International Criminal Court. Available at: https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_02856.PDF (accessed: 14.02.2025).
²⁵ See: ibid, para. 117.
²⁶ The existence of this convention in international law was conformed by the International Court of Justice. See: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3, para. 51.
²⁷ See: Document A/6309/Rev.1: Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session // Yearbook of the International Law Commission, 1966. Vol. II. New York: United Nations, 1967. P. 226.
²⁸ Preparation for the non-constitutional upheaval in Kyiv, instructions given to the rebels by the US Embassy are comprehensively described in the book by former Ukrainian PM N. Azarov, who earlier worked with the lawfully elected Ukrainian President, V. Yanukovych. See: Azarov N. Ukraine at a Crossroads. Notes from the Prime Minister Moscow, Veche Publ, 2015. 512 p. (In Russian)
²⁹ A specialised UN institution Russia is a member of. For the IMF see its site: About the IMF // International Monetary Fund. Available at: https://www.imf.org/en/About (accessed: 05.02.2025).
³⁰ A non-governmental organisation. Established in 1873. For more details see its site: About the Institute // Institut de Droit International. Available at: https://www.idi-iil.org/en/a-propos/ (accessed: 05.02.2025).
³¹ See its articles 1, 5 (Definition of aggression: [appendix to UN General Assembly Resolution 3314 (XXIX) dated 14.12.1974]. Out there at: https://digitallibrary.un.org/document/190983/recordsdata/A_ RES_3314percent28XXIXpercent29-RU.pdf?ln=ru (accessed: 14.02.2025)).
³² Official go to to Mongolia // President of Russia. Out there at: http://www.kremlin.ru/occasions/president/journeys/75016 (accessed: 05.02.2025).
³³ ICC: Mongolia’s refusal to arrest Putin was submitted for consideration of the Meeting // United Nations Organisation. Alailable at: https://information.un.org/ru/story/2024/10/1457701 (accessed: 05.02.2025).
³⁴ “In order that the matter could flourish quite than perish” (In Latin).
³⁵ Pre-Trial Chamber II: State of affairs in Ukraine. Discovering below article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Courtroom to cooperate within the arrest and give up of Vladimir Vladimirovich Putin and referral to the Meeting of States Events, No. ICC-01/22, 24 October 2024, para. 34. // Worldwide Prison Courtroom. Out there at: https://www.icc-cpi.int/websites/default/recordsdata/CourtRecords/0902ebd1809d1971.pdf (accessed: 05.02.2025).
³⁶ Korea – Definitive Safeguard Measure on Imports of Sure Dairy Merchandise: Report of the Appellate Physique (adopted on 12 January 2000), AB-1999-8 (WT/DS98/AB/R), para. 80.
³⁷ Pre-Trial Chamber I. State of affairs in Darfur, Sudan: The Prosecutor v. Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09, 13 December 2011, para. 37. // Worldwide Prison Courtroom. Out there at: https://www.legal-tools.org/doc/8c9d80/pdf (accessed: 05.02.2025).
³⁸ See, as an example: Ispolinov A. S. Anatomy of a Disaster: Issues of Normative Legitimacy of an Worldwide Prison Courtroom // Zakon. 2024. no. 2. P. 130–131. (In Russian); Kjeldgaard-Pedersen A. Is the High quality of the ICC’s Authorized Reasoning an Impediment to Its Means to Deter Worldwide Crimes? // iCourts: iCourts Working Paper Collection. 2020. no. 191. P. 15–17. Out there at: https://papers.ssrn.com/sol3/Supply.cfm/SSRN_ID3570447_code2133408.pdf?abstractid=3570447&mirid=1&sort=2 (accessed: 05.02.2025); Tladi D. The ICC Choices on Chad and Malawi: On Cooperation, Immunities, and Article 98 // Journal of Worldwide Prison Justice. Vol. 11. 2013. no. 1. P. 199–221; Van Alebeek R. The Immunity of States and Their Officers in Worldwide Prison Regulation and Worldwide Human Rights Regulation. Oxford; New York: Oxford College Press, 2008. P. 278.
³⁹ Students’ opinion that ‘… the Courtroom’s structure is significantly flawed’ seems to be well-grounded (Schabas W. A. Op. cit. P. 19).
⁴⁰ Pre-Trial Chamber II: State of affairs in Ukraine. Discovering below article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Courtroom to cooperate within the arrest and give up of Vladimir Vladimirovich Putin and referral to the Meeting of States Events, No. ICC-01/22, 24 October 2024, para. 28.
⁴¹ Ibid, paras. 6, 29, 30.
⁴² See: ibid, para. 38 and findings.
⁴³ See: ICC arrest warrant? No worries for Sudan’s Bashir who visited 22 international locations in 7 years // World Tribune: Window on the Actual World. Out there at: https://www.worldtribune.com/icc-arrest-warrant-no-worries-for-sudans-bashir-who-visited-22-countries-in-7-years/ (accessed: 14.02.2025); Nuba Studies. Sudan’s president has made 74 journeys the world over within the seven years he’s been wished for battle crimes // Quartz. Out there at: https://qz.com/africa/630571/sudans-president-has-made-74-trips-across-the-world-in-the-seven-years-hes-been-wanted-for-war-crimes (accessed: 14.02.2025).
⁴⁴ Pre-Trial Chamber I: State of affairs within the Republic of the Philippines: Resolution on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute, No. ICC-01/21 // Worldwide Prison Courtroom. Out there at: https://www.icc-cpi.int/websites/default/recordsdata/CourtRecords/CR2021_08044.PDF (accessed: 18.03.2025).
⁴⁵ See: Ibid, para. 111.
⁴⁶ Filatov S. Duterte’s arrest and its implications for the Philippines, the US and China // The Worldwide Affairs. Out there at: https://interaffairs.ru/information/present/50683 (accessed: 18.03.2025); Smith T. The ICC caught in clan rivalry in Philippines // Justiceinfo.web. Out there at: https://www.justiceinfo.web/en/140756-icc-caught-clan-rivalry-philippines.html (accessed: 18.03.2025).
⁴⁷ Smith T. Op. cit.
⁴⁸ US President Joe Biden accused Russia of violation of the UN Constitution because it allegedly ‘waged a brutal unnecessary battle’ towards Ukraine (‘President Biden … accused Russia of violating the United Nations worldwide constitution in its “brutal, unnecessary battle” towards Ukraine’). See: Biden in UN speech accuses Russia of “extraordinarily vital” violation of worldwide constitution // Fox Information. Out there at: https://www.foxnews.com/politics/biden-un-speech-accuses-russia-extremely-significant-violation-international-charter (accessed: 05.02.2025).
⁴⁹ The World Reacts to Russia’s Invasion of Ukraine // Lawfare. Out there at: https://www.lawfare-media.org/article/world-reacts-russias-invasion-ukraine (accessed: 05.02.2025).
⁵⁰ G7 Leaders’ Assertion on the invasion of Ukraine by armed forces of the Russian Federation // Council of the European Union. Out there at: https://www.consilium.europa.eu/en/press/press-releases/2022/02/24/g7-leaders-statement-on-the-invasion-of-ukraine-by-armed-forces-of-the-russian-federation/ (accessed: 14.02.2025).
⁵¹ Macky Sall, Chair of the African Union and President of Senegal, and Moussa Faki Mahamat, Chairpersonn of the African Union Fee, specifically, referred to as on the Russian Federation to ‘… imperatively respect worldwide regulation, the territorial integrity and nationwide sovereignty of Ukraine’ (Assertion from Chair of the African Union, H. E President Macky Sall and Chairperson of the AU Fee H.E Moussa Faki Mahamat, on the state of affairs in Ukraine // African Union. Out there at: https://au.int/en/pressreleases/20220224/african-union-statement-situation-ukraine (accessed: 05.02.2025)).
⁵² Beneath ‘ratione materiae’ immunity we perceive immunity from overseas felony justice in respect of an official of the state concerning actions this individual executes inside the framework of the mandate and which might be outlined as ‘formal actions’.
⁵³ Subjective scope of ‘ratione personae’ immunity: the top of state, head of presidency and the minister of overseas affairs are immune from felony justice of a overseas state. ‘Ratione personae’ immunity is recognised mechanically, in accordance with the rule of worldwide regulation, in respect of public authorities which signify the state in worldwide relations. This immunity is utilized in respect of all actions (whether or not personal or formal) dedicated by the representatives of the state.
⁵⁴ Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Studies 2002, p. 3, para. 51.
⁵⁵ See, as an example: Ispolinov A. S. Attempting on the Ring of Omnipotence: The Worldwide Prison Courtroom and the Immunities of Heads of State // Rossiiskii iuridicheskii zhurnal. 2023. No. 2. P. 40, 52–53. (In Russian); Akande D. Worldwide Regulation Immunities and the Worldwide Prison Courtroom // The American Journal of Worldwide Regulation. 2004. Vol. 98. no. 3. P. 410–411, 421.
⁵⁶ Within the resolution on the non-compliance by South Africa with the request by the Courtroom for the arrest and give up of Omar Al-Bashir the Pre-Trial Chamber, referring to the identical paragraph 51 of the ICJ judgment dated 14 February 2002 in case ‘Arrest Warrant of 11 April 2000’, acknowledged: “The Chamber is unable to determine a rule in customary worldwide regulation that may exclude immunity for Heads of State when their arrest is hunted for worldwide crimes by one other State, even when the arrest is sought on behalf of a global court docket, together with, particularly, this Courtroom (Writer’s word: the ICC)” (Pre-Trial Chamber II. State of affairs in Darfur, Sudan: within the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir: Resolution below article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Courtroom for the arrest and give up of Omar Al-Bashir, No. ICC-02/05-01/09, 6 July 2017, para. 68 // Worldwide Prison Courtroom. Out there at: https://www.legal-tools.org/doc/68ffc1/pdf (accessed: 15.02.2025)).
⁵⁷ The States Events to the Rome Statute // Worldwide Prison Courtroom. Out there at: https://asp.icc-cpi.int/states-parties (accessed: 05.02.2025).
⁵⁸ Constitution of the United Nations: Standing as at: 14-02-2025 10:15:47 EDT // United Nations Treaty Assortment. Out there at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-1&chapter=1&clang=_en (accessed: 14.02.2025).
⁵⁹ From the angle of the inhabitants figures in non-member states this is almost all of the Earth’s inhabitants.
References
Akande, Dapo. 2004. Worldwide Regulation Immunities and the Worldwide Prison Courtroom. The American Journal of Worldwide Regulation 98 (3): 407–433.
Alekseeva, Diana G., Yana O., Alimova, Inna S., Barzilova et. al. 2023. Regulation below sanctions. Mazhorina M. V., Shakhnazarov B. A. (eds). Moscow, Prospekt Publ. (In Russian)
Azarov, Nikolay. 2015. Ukraine at a Crossroads. Notes from the Prime Minister. Moscow, Veche Publ. (In Russian)
Bachmann, Sascha-Dominick D., Sowatey-Adjei, Naa A. 2020. The African Union-ICC Controversy Earlier than the ICJ: A Manner Ahead to Strengthen Worldwide Prison Justice? Washington Worldwide Regulation Journal 29 (2): 247–301.
Bosco, David. 2013. Why is the Worldwide Prison Courtroom selecting solely on Africa? The Washington Put up. March 29. Out there at: https://www.washingtonpost.com/opinions/why-is-the-international-criminal-court-picking-only-on-africa/2013/03/29/cb9bf5da-96f7-11e2-97cd-3d8c1afe4f0f_story.html (accessed: 04.02.2025).
Commentary on the Regulation of the Worldwide Prison Courtroom: The Statute. Vol. 1. 2023. Klamberg M., Nilsson J., Angotti A. (eds). 2nd ed. Brussels, Torkel Opsahl Educational Epublisher. 1104 p.
Filatov S. Duterte’s arrest and its implications for the Philippines, the US and China. The Worldwide Affairs. March 15, 2025. Out there at: https://interaffairs.ru/information/present/50683 (accessed: 18.03.2025). (In Russian)
Gevorgyan, Kirill. 2012. “Unilateral Sanctions” and Worldwide Regulation. The Worldwide Affairs 8. Out there at: https://interaffairs.ru/jauthor/materials/720 (accessed: 06.03.2025). (In Russian)
Worldwide Regulation and the Struggle towards Crime. Assortment of Paperwork. 1997. Zmeevskii A. V., Kolosov Yu. M. (introd.). Moscow. (In Russian)
Ispolinov, Aleksey S. 2023. Attempting on the Ring of Omnipotence: The Worldwide Prison Courtroom and the Immunities of Heads of State. Rossiiskii iuridicheskii zhurnal 2: 37–58. (In Russian)
Ispolinov, Aleksey S. 2024. Anatomy of a Disaster: Issues of Normative Legitimacy of an Worldwide Prison Courtroom. Zakon 2: 124–132. (In Russian)
Kjeldgaard-Pedersen, Astrid. 2020. Is the High quality of the ICC’s Authorized Reasoning an Impediment to Its Means to Deter Worldwide Crimes? iCourts: iCourts Working Paper Collection 191. 29 p. Out there at: https://papers.ssrn.com/sol3/Supply.cfm/SSRN_ID3570447_code2133408.pdf?abstractid=3570447&mirid=1&sort=2 (accessed: 05.02.2025).
Klabbers, Jan. 2017. Worldwide Regulation. 2nd ed. Cambridge, Cambridge College Press. 370 p.
Kritskiy, Kirill V. 2016. The phrases “worldwide sanctions” and “unilateral restrictive measures”. Moskovskii zhurnal mezhdunarodnogo prava 2: 204–213. (In Russian)
Kritskiy, Kirill V. 2019. Sanctions and unilateral restrictive measures in fashionable worldwide regulation. PhD in Regulation thesis. Moscow. 186 p. (In Russian)
Ning Yu. How US evades accountability for battle crimes in Afghanistan. World Occasions. Out there at: https://www.globaltimes.cn/web page/202109/1235240.shtml (accessed: 14.02.2025).
Pyatibratov, Ivan S. 2020. Sanctions and unilateral restrictive measures: the issue of delineation of phrases and identification of phenomena. Gumanitarnye nauki. Vestnik Finansovogo universiteta 10 (6): 61–65. (In Russian)
Ryzhova, Mariia V. 2006. Financial sanctions in fashionable worldwide regulation. PhD in Regulation thesis summary. Kazan. 25 p. (In Russian)
Schabas, William A. 2020. Chapter 1: The dynamics of the Rome Convention. The Elgar Companion to the Worldwide Prison Courtroom. de Guzman M., Oosterveld V. (eds). Cheltenham, Edward Elgar Publishing Restricted; Northampton, Edward Elgar Publishing, Inc.: 3–19.
Shaw, Malcolm N. 2008. Worldwide Regulation. sixth ed. New York, Cambridge College Press. CLXVI. 1542 p.
Smith T. The ICC caught in clan rivalry in Philippines. Justiceinfo.web. January 27, 2025. Out there at: https://www.justiceinfo.web/en/140756-icc-caught-clan-rivalry-philippines.html (accessed: 18.03.2025).
The Previous, Current and Way forward for the Worldwide Prison Courtroom. 2021. Heinze A., Dittrich V. E. (eds). Brussels, Torkel Opsahl Educational EPublisher. XXI, 783 p.
Tladi, Dire. 2013. The ICC Choices on Chad and Malawi: On Cooperation, Immunities, and Article 98. Journal of Worldwide Prison Justice 11 (1): 199–221.
van Alebeek, Rosanne. 2008. The Immunity of States and Their Officers in Worldwide Prison Regulation and Worldwide Human Rights Regulation. Oxford; New York, Oxford College Press. XXXVIII, 449 p.
Article by Deputy Chairman of the Safety Council of the Russian Federation Dmitry Medvedev for the St. Petersburg State College journal “Pravovedenie”
