On 3 September 2024, the Russian President Putin, whose arrest is sought by the ICC for alleged war crimes committed during the war in Ukraine (see eg Sergey Vasiliev), made his first visit to an ICC State Party (Mongolia) since the issuance of the arrest warrant. Despite demands for Putin’s arrest, Mongolia did not do so. On 24 October 2024 the Pre-Trial Chamber II (‘PTC II’) rendered a decision in which it found Mongolia in non-compliance with its request to arrest Putin (‘Mongolia Decision’). While this finding was predictable, the decision’s reasoning deviates from precedents in a way that signals a new mindset of the PTC II. My argument is that this mindset – what I propose to call ‘cynical solipsism’ – could be detrimental to the life of the institution. Given the Court’s ever demanding task to seek arrest of two political leaders of non-State Parties, Putin and the Israeli Prime Minister Netanyahu, the ICC should seriously reconsider how to engage with States to secure their cooperation.
A Conversion of Reasoning and its Signification
The Mongolia Decision must be seen against the background of the famous Al-Bashir saga. Apart from the existence of a Security Council referral in Al-Bashir and absence of such referral in Putin, the situation was the same in all legally relevant respects: a State Party is requested to arrest a Head of State of a non-State Party. All Chambers concerned in Al-Bashir reached the conclusions that an arrest would not have violated the immunity of Al-Bashir and that, hence, the State to whom the Court requested arrest (‘requested State’) was in non-compliance with the request. But two different lines of reasoning were provided: the ‘customary law avenue’ (decisions against Malawi, Chad, and Jordan(Appeals Chamber)) and the ‘Security Council resolution avenue’ (DRC, South Africa, Uganda, Djibouti, Jordan(PTC II), and Jordan(Appeals Chamber)) (for a detailed analysis, see C Kreß ‘Article 98’ in Rome Statute of the International Criminal Court (4th edn, 2022) pp 2626-2663). While the latter relied on Security Council resolution 1593, the former was based on customary law. In its Al-Bashir decision, the Appeals Chamber unanimously endorsed the customary law avenue and held:
‘There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (para 1)
Despite its problematic reversal of onus, the Chamber effectively strived to establish the non-existence of personal immunity under applicable custom. Thus, it was to be expected that this avenue would be the line of reasoning to be followed in future proceedings, including those in Putin (see eg Yunqing Liu). Mongolia expected the same as is evident from its written submission extensively criticizing the customary law avenue.
One cannot be but amazed that, in the first non-compliance decision in Putin, the PTC II appears to follow a different logic. The PTC II held:
‘The Chamber notes that the issue under consideration is neither whether there exists immunity for Heads of State under customary international law vis-à-vis an international court, nor whether non-States Parties are bound by the provisions of the Statute. […] The question that the Chamber has to answer in the present case is whether States Parties, including Mongolia, […] have an obligation to execute an arrest warrant regarding the Head of a non-State Party in compliance with article 27 of the Statute.’ (para 20)
That said, it proceeds to the interpretation of the Statute:
‘[A]rticle 27 of the Statute has the effect of removing any and all international law immunities of officials, including Heads of State, and binds to that effect States Parties […] not to recognise any kind of immunity or apply special procedural rules that they may attach to any persons. […] Therefore, any arguable bilateral obligation that Mongolia may owe to the Russian Federation to respect any applicable immunity that international law may allow to Heads of State is not capable of displacing the obligation that Mongolia owes to the Court […]. Given its nature and purpose, such a multilateral obligation cannot be altered or superseded by any bilateral commitments that may conflict with the Rome Statute’s objectives. […] [P]ersonal immunity of officials, including Heads of third States, is therefore not opposable in proceedings before the Court […].’ (paras 27-28 and 36, emphases added)
The Court’s finding of non-compliance is essentially based on this reasoning. While this gives reason for various serious criticisms, I would like to point to a problematic shift in judicial mindset that is signified by this peculiar way to proceed. Namely, the Mongolia Decision stands out from precedents due to a complete absence of references to sources of international law outside the Rome Statute therein.
The PTC II’s Cynical Solipsism
The crux of the matter is why the Chambers in Al-Bashir relied on the two avenues indicated above. The answer seems to be the following: since the arrest of Al-Bashir involved legal problems from the perspective of requested States in their relationship with Sudan (a State not party to the Rome Statute), the Court had to explain why, in its view, there weren’t such problems in this very relationship that States thought there were. A persuasive explanation hence required having resort to sources of international law that governed the relationship between requested States and Sudan. Therefore, the Court’s reference to custom or/and resolution 1593 implies the Court’s recognition of possible rights of non-State Parties and their legal relevance also for proceedings before the Court, or, in less technical terminology, it implies the Court’s recognition of the legitimacy of others (thus ‘others’ here are not enemies but adversaries at worst. C Mouffe, On the Political (2005) p 20). By premising its reasoning on such a recognition, the Court in Al-Bashir could be seen as respecting a common ground with States on which they both base their claims. It was this ground that allowed the Court to operate as a pendulum between empathy (understanding States’ concerns) and condescension (resolving such concerns).
By contrast, the Mongolia Decision reduces the entire relevant legal questions into interpretive questions of the Statute. Except for the sections that cite Mongolia’s submission and briefly dismiss them, the term ‘custom(ary law)’ does not appear even once. In its logic, the Statute is closed and complete, as if no outside legal realm existed. Others are taken into account only when they owe obligations to the Court or bear other obligations that the Court recognizes as opposable to itself. There, interpretation and application of the Statute solves everything. Thus, the pendulum is eternally stuck at the extreme of condescension: the requested States’ perspective, let alone that of non-State Parties almost turns into an enemy’s perspective that must be annihilated for the higher morality’s sake. It is for this reason that the Mongolia Decision carries the resonance of a solipsistic monologue. By ‘solipsism’ I refer to a mindset in which a subject perceives only itself, sees only its own needs and interests, and acts so as to universalize them. What is worse, the PTC II’s solipsism was cynical. The Court should have been quite aware of the distance between its formalistic clinging to the Statute and the international social reality, but it nonetheless still insisted upon the former. Against such cynicism, the power of rational critiques seems to be faint as judges already knew what the crits were to say. What the Mongolia Decision presents is not an error of law but, so to speak, the PTC II’s perverted will to error.
The overlook thus is bleak.
A Way Out
As the Court’s cynical reason may already acknowledge, the improvement of internal rationality of the Mongolia Decision (ie refinement of the proposed interpretation of the Statute) will not resolve the problem of non-cooperation in this type of situation. For from States’ perspective, the solipsistic Court assumes the appearance of an enemy, and its rationale is simply heresy (A Fischer-Lescano and G Teubner, ‘Regime-Collisions’ (2004) p 1005; cf H Morgenthau, Politics Among Nations (1st edn, 1949) pp 182-183).
A way out is to recover the lost common ground. In the absence of a Security Council referral, such as in Putin, only the customary law avenue offers a common ground. Indeed, the Court’s frustration with the avenue coming from experience in Al-Bashir is understandable. But the Court’s strategy shouldn’t be retreat to its own closed system but patient engagement in a project of (re)description and (re)formation of relevant customary international law. There is still much the Court should/can do in this direction. The line of reasoning put forward in the Appeals Chamber Judgement should be improved by, for example, refining the concept of ‘international court’; reinterpreting the ICJ’s disassociation of issues of immunity and individual criminal responsibility (Arrest Warrant para 60), et cetra. Should there be a sentiment within the Court that the status quo of international consensus about the relevant custom must be against it, the ICC is to be reminded of the attitude of the Italian Constitutional Court in its Judgment no. 238 (2014). Facing the dilemma between Italy’s customary obligation, that the ICJ identified, to confer immunity to acts of German armed forces and the Italian core values to ensure remedy for victims, the Court bravely advocated for a shift in the custom and substantiated opinio necessitatis to set a precedent for the shift to come (M Frulli ‘‘Time Will Tell Who Just Fell and Who’s Been Left Behind’’ (2016) pp 593-594). If a domestic court can do it, why cannot an international court?
All in all, it is by referring to a legal framework which is shared with others in its judgement that a solipsistic subject regains sociality and entitlement to participate in the dynamism of the construction of a universal community (M Koskenniemi ‘Legal Universalism’ in Law, Justice and Power (2004) pp 61-62). For the ICC, reactivation of the customary law avenue is the nearest exit from a world of solitude and the momentum to resume the pendulum motion. The Court’s swing between empathy (understanding States’ concerns) and condescension (producing decisions to set precedents) is essentially the drive which enables it to speak up in a universal language and to engage in the development of international law.
Conclusion
If the ICC is to uphold the Mongolia Decision’s reasoning, the global impact of non-compliance decisions will be reduced significantly. For then non-compliance becomes a local affair narrated in a vernacular language called Rome Statute, far from appealing to the international community as a whole. This will eventually erode the Court’s claim to global authority. Now that an arrest warrant has been issued also for Netanyahu, such a particularization of the ICC system must be avoided.
Following the decision by the PTC II, Mongolia shortly submitted a request for a leave to appeal with references to customary law issues. The ICC should by all means make use of this opportunity to find its way back beyond the cynical solipsism. As a giant without limbs, it should never remain in blissful ignorance of others.
