On the 24th of October, while the President of the ICC expressed their “high appreciation” for the strong cooperative relations with the UN, commemorating the “UN Day”, something even more telling about UN-ICC relationships happened 3000 km from The Hague in Kazan, Russia. The UN Secretary-General, António Guterres, smiling and bowing his head, shook hands with the person the ICC seeks to arrest: Vladimir Putin. While international media highlighted the moral controversy of the meeting, which epitomizes the disrespect for the Ukrainian children transferred and deported, for which Putin is wanted, putting aside feelings, a legal analysis suggests that Guterres’s actions may have also violated UN obligations toward the ICC.
Legal Framework for UN Meetings with ICC Suspects
Though the ICC is independent from the UN, the two maintain close ties. The Rome Statute, which established the ICC, was negotiated under UN auspices. From its outset, the Rome Statute reaffirms the Purposes and Principles of the UN Charter. Most importantly, Article 2 of it establishes that “The Court shall be brought into relationship with the United Nations through an agreement.”
The Relationship Agreement between the UN and the ICC entered into force in 2004. Under Article 3 of it, the UN and the ICC are to cooperate closely and coordinate their actions. In 2016, the UN issued its “Best Practices Manual for UN – ICC Cooperation,” providing the UN representatives with practical guidance in implementing the Relationship Agreement. The Manual has a separate section on “Essential contact policy,” according to which:
The United Nations has a general obligation to refrain from any action that would frustrate the activities of the Court and its various organs, including the Prosecutor, or undermine the authority of their decisions.
In line with this general obligation, the Secretary‐General issued guidelines in April 2013 on contact between UN officials and persons who are the subject of arrest warrants […] issued by the International Criminal Court.
The UN itself recognized the rules on the non-essential contacts policy, including the 2013 Guidance, to be the continuation of the UN obligations under the 2004 Relationship Agreement and, thus, binding. This aligns with the UN member states’ stances (see, for instance, the Argentinian representative stressing that “Argentina […] has always maintained that the Secretary-General must ensure the strict implementation of the guidelines”; UK’s representative urging “the Secretariat to ensure full compliance with it [policy on non-essential contact]”; and Luxembourg’s representative stressing that these directives “must be strictly observed”).
Under the Guidance, generally, there should be no meetings between UN officials and ICC suspects. The single exception applies to those meetings “that are strictly required for carrying out essential United Nations mandated activities.” The Guidance also provides that, when contact is absolutely necessary, every attempt should be made to interact with individuals of the same group or party who are not wanted by the ICC. The 2016 UN Manual also requires the UN Office of Legal Affairs to inform the ICC’s Prosecutor and the President of the ASP about any scheduled meetings with the ICC suspects in advance.
In this joint statement, Truth Hounds and Ukrainian NGOs analyzed the UN’s non-essential contacts policy and proved that there was no need, or at least no substantiation, for a Gueterres–Putin meeting. The personal meeting of Mr. Guterres with Mr. Putin and their discussion of the war in Ukraine does not strengthen the rule of law to bring accountability and justice, in the public perception, undermines the authority of the ICC’s arrest warrant, and indicates the normalization of contacts with potential war criminals at the international level. The UN’s brief justification for the Guterres–Putin meeting cited ‘standard practice’ at meetings with large numbers of important Member States without addressing the specific rules in the Relationship Agreement, UN Guidance, and 2016 Manual.
Moreover, the Guidance unequivocally establishes that “there should be no ceremonial meetings with such persons and standard courtesy calls should not be paid on them. The same holds true of receptions, photo opportunities […].” As Sergey Vasiliev noted: “What grand humanitarian strategy may have guided the UNSG to shake the hand of Putin and bro-hug Lukashenka?” (links added).
The 24th of October was a newsworthy day. The ICC found that Mongolia failed to cooperate in arresting Vladimir Putin. However, Guterres’s own reckless approach does not contribute to a more serious attitude of States toward cooperation under ICC arrest warrants. The desired “strengthening the rule of law at the international level and bringing accountability and justice for all,” to use the words of the ICC’s President, may be undermined if the representatives of the international organizations and bodies, who should be the exemplars of the rule of law, themselves disregard the written rules.
UN’s Repeated Disregard for the Non-Essential Contact Policy
Guterres’s meeting with Putin was not an isolated incident. In the Darfur conflict, UN officials also engaged with Sudanese President Omar al-Bashir despite an ICC warrant. To exemplify, one UN envoy engaged with President Bashir on a regular basis, while the ICC Prosecutor Fatou Bensouda raised concerns about Deputy Secretary-General Jan Eliasson’s long meeting with Mr. al-Bashir, emphasizing that such contacts must meet a rigorous standard of necessity. Absent this standard, interactions with ICC suspects could lend legitimacy to their actions and risk public perception that the UN undermines the ICC’s authority:
“[…] to dispel misperceptions about United Nations engagements with indictees, the Organization might wish, to the extent that it is possible, to make public all its contacts with those subject to ICC warrants of arrest, including, as far as is necessary, providing explanations of why such contacts are deemed to have been strictly required for carrying out essential United Nations-mandated duties” (emphases added)
Apart from the al-Bashir saga, in May 2023, the UN Secretary-General’s Special Representative for Children and Armed Conflict, Virginia Gamba, visited Moscow to meet with another ICC suspect: Russian Commissioner on Children’s Rights Maria Lvova-Belova.
Ryan Goodman, a founding co-editor-in-chief of Just Security, aptly noted that the meeting was sharply criticized by human rights groups (Human Rights Watch and Amnesty International officials) and legal scholars (Kim Thuy Seelinger, Mark Kersten, Kevin Jon Heller, Claus Kress, Todd Buchwald). For instance, Claus Kress emphasized: “The rather vague and evasive reaction by the U.N. spokesperson does not give one the reassurance that the strict criteria set out in the Guidance for a direct contact under exceptional circumstances had been rigorously considered. In fact, the spokesperson does not even appear to have specifically referred to the Guidance despite its obvious specific relevance in the case at hand.” (link added)
E. Jimenez called the Secretary-General “to explain the reasoning behind approving this alleged meeting.” However, the Secretary-General’s 2023 report on the UN-ICC relationship fails to mention the Gamba–Lvova-Belova meeting, let alone justify its need. This may leave public observers with a sense that the UN does not take these obligations rigorously. In fact, the UN’s annual reports on its relationship with the ICC have consistently echoed a generic statement on compliance without detailing specific contacts with ICC suspects (see para 5 of 2024, 2023, and 2022 reports, the identical paras being used in 2020 and 2021 except that the last sentence is absent).
The problematic aspect is not limited to the meetings alone but expands to the fact that UN representatives do not feel the need to justify and substantiate such visits. Instead of being open to discussion and providing proper justifications, UN representatives hide behind some general remarks on compliance.
Considerations for Adherence and Transparency
The recent meeting between UN Secretary-General Guterres and President Putin highlights complex issues related to adherence to the non-essential contacts policy. The Secretary-General may adopt a more comprehensive approach to reporting to the General Assembly on the UN-ICC relationship, ensuring that any meetings with the ICC suspects are thoroughly analyzed and addressed in the report. Such substantiation and transparency would uphold institutional credibility and support the goals of international justice.
