To readers of International Affairs:
We would like to share with you a practical analysis by the Russian Ministry of Foreign Affairs ‘ International Law Advisory Board of the activities of the so-called International Criminal Court (ICC).
The Russian Foreign Ministry’s International Law Advisory Board was created in 2009 to strengthen the ministry’s cooperation with the Russian legal community. This serves the interests of the practical work of the Ministry of Foreign Affairs and at the same time may contribute to the development of science itself. The ministry’s legal department organizes the Council’s activities and its interaction with the ministry’s departments and agencies.
These are not the first results of the Council’s activities published in International Affairs. In previous years, readers have been presented materials on a variety of topics, including, for example, the concept of “responsibility to protect. “
Well-known Russian international relations scholars took part in studying the issue and drawing up the Council’s legal opinion on the legality of the ICC’s activities. A list of Board members can be found at the end of the article.
Scientific interest in this topic is due to destructive manifestations in the work of the ICC, which consistently violates generally accepted norms of international law and standards of justice. Having once caused a lot of trouble for African countries, this pseudo-legal body has now turned its attention to other states that the West finds undesirable. At the same time, the crimes of Western countries and their allies remain outside the field of view of the ICC. The international community once had high hopes for this organization, but it has turned into a totally corrupt body working strictly on political orders. It is not surprising that the International Law Advisory Board concludes that it has lost all credibility and international legitimacy.
Maxim Musikhin, Director of the Legal Department of the Russian Foreign Ministry
The Legal Nature of the ICC
THE International Criminal Court (ICC) was established by an international treaty, the Rome Statute (RS), adopted on July 17, 1998.1 As of April 1, 2024, 124 states are parties to the RS. Despite the seemingly impressive number of participants,2 this agreement cannot be considered universal. Many states do not participate in it – in particular, three of the five permanent members of the UN Security Council (Russia,3 China, and the US); industrialized and densely populated India, Pakistan, Turkey, Malaysia, Indonesia; the states of the Arab East (except for Jordan and Tunisia); and many others.4
At various times, Israel, Russia, the US, and Sudan, previous signatories, declared their intention not to become parties to the RS.
Unlike sovereign states, which are the primary and main subjects of international law, international organizations are its derivative subjects, created by an agreement between states. They are, “notwithstanding frequent assertions, … not some universal, supranational entities ‘absorbing’ the sovereign rights of states and dictating to them the rules and norms of conduct on the world stage.”5 In any case, the scope of the powers of international organizations cannot exceed that of the states that established them.
The exercise of judicial functions by the ICC does not contradict its legal nature as an international organization. It follows from this that the activities of the ICC as an interstate judicial body must be carried out in strict accordance with the provisions of its constitutive treaty – i.e., the RS.
At the same time, the application and interpretation of the RS (and other documents regulating the activities of the ICC) must be carried out on the basis of and with strict observance of the norms of current international law, primarily the UN Charter and the principles of international law enshrined therein.
An integral element of the legal personality of any international organization is the ability to bear responsibility for internationally wrongful acts.6 In 2011, the UN International Law Commission adopted draft articles on the “Responsibility of International Organizations,” which largely codified the rules of customary international law in this field. It is quite logical to assume that international organizations performing the functions of a judicial body can, like any other international organizations, commit illegal acts and bear responsibility for them.7
Jurisdiction of the ICC
AS NOTED in the preamble to the RS and in its Article 1, the ICC is meant to complement (not replace) national judicial authorities. According to Article 5 of this international legal act, the jurisdiction of the Court is limited to the most “serious crimes of concern to the international community as a whole.” The crime of genocide, crimes against humanity, war crimes, and the crime of aggression fall under this category. Moreover, the ICC has jurisdiction over these crimes only if they were committed on the territory (or on board a vessel or aircraft) of a state party to the RS or by its citizen (Article 12).
In its activities, the ICC has deviated from both its original goals enshrined in the Rome Statute and, in general, from the norms and principles of international law.
States not party to the RS may accept the jurisdiction of the ICC over the crimes listed in Article 5 by means of a special declaration, subject to the fulfillment of the conditions specified in Article 12 of the Statute. C�te d’Ivoire was the first to utilize this opportunity in 2003 (10 years before it ratified the RS),8 followed by Ukraine in 2014.9
With regard to the crime of aggression, under Articles 15 bis and 15 ter of the RS,10 the ICC can only exercise its jurisdiction if a relevant situation is referred to it by the UN Security Council or a state itself.11
Despite these provisions of the RS limiting the jurisdiction of the ICC. including ratione temporis and ratione loci, in its practice, the Court has repeatedly deviated from them and, in fact, acted beyond the scope of its powers.
Exercise of Jurisdiction Over a State That Has Withdrawn From the Rome Statute
IN FEBRUARY 2018, the ICC prosecutor announced the commencement of a preliminary examination of the situation in the Philippines.12 On March 16, 2018, the Philippines notified the UN secretary-general of its withdrawal from the RS. On March 17, 2019, the withdrawal became effective (according to RS Article 127, it takes effect one year after the date of receipt of the notice of withdrawal, unless the notification specifies a later date).
As of March 17, 2019, the case was at the preliminary examination stage. It was not until 2021, when the Philippines was no longer a party to the RS, that the prosecutor sought and obtained the consent of the Pre-Trial Chamber to launch a full investigation.13 In 2023, that decision was upheld by the Appeals Chamber14 (by a minimal margin of one vote – three judges to two; the latter expressed their disagreement with the decision in a dissenting opinion).
According to Article 5 of the Vienna Convention on the Law of Treaties, the convention “applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization.”15 This means, in particular, that each state has the sovereign right to withdraw from the constituent treaty of an international organization (in relation to the ICC, this is enshrined in RS Article 127). The initiation by the ICC of an investigation into a situation in a state that has left the RS is inconsistent with that right. It also contravenes the sovereign right of each state to consent to submit to the jurisdiction of a particular international court.16
RS Article 127(2) does stipulate that withdrawal from this statute does not relieve the state from fulfilling obligations that arose while it was a party to the statute. However, this provision specifies Article 70 of the Vienna Convention on the Law of Treaties of 1969: The withdrawal of a state from an international treaty does not affect the obligations that it incurred during the period of its implementation. This provision must be interpreted in light of the fundamental principle of the law of international treaties: A treaty is binding only on its parties. The obligation to cooperate with the ICC under RS Article 86 applies only to parties to that treaty. In Article 70 of the Vienna Convention itself, the rule on the maintenance of obligations incurred prior to withdrawal (paragraph 1(b)) is preceded by the provision that, after withdrawing from the treaty, a state is released from any obligation further to perform it (paragraph 1(a)).
There is no reason to believe that RS Article 127 expands the obligations of states that are ending their participation in the ICC beyond those obligations enshrined in Article 70 of the Vienna Convention. The materials of the Rome Conference do not confirm otherwise.17 Consequently, when a state withdraws from the RS, its only obligations are those that arose when it was a party to the agreement, including specific requests for cooperation that the ICC sent to this state before its withdrawal from the RS. After withdrawal, that state cannot incur new obligations to the Court. A different interpretation would mean the endless subjection of a state that has withdrawn from the ICC to all obligations under the RS – i.e., it would make the very idea of withdrawing from an international treaty meaningless.
Thus, we must agree with the judges of the Appeals Chamber who voted against upholding the decision to open an investigation into the situation in the Philippines. In their opinion, the conditions for the Court to exercise its jurisdiction, specified in RS Article 12, must exist at the time of its invocation in accordance with RS Article 13 – i.e., at the time the ICC Pre-Trial Chamber authorized the commencement of an investigation into the situation.18 As rightly stated in the dissenting opinion, the decisive factor in this case is the fact that the Philippines had withdrawn from the RS prior to the Prosecutor’s request to open an investigation.19 It is noteworthy that the judges who voted in favor of the decision did not dispute that argument, but chose not to consider this issue at all, citing procedural obstacles.
Violation of Jurisdiction ratione loci
THE situation in Bangladesh under investigation by the ICC prosecutor concerns the alleged forcible deportation of Rohingya from Myanmar to Bangladesh as a crime against humanity under RS Article 7(l)(d).
In 2018, the ICC Office of the Prosecutor20 and then its Pre-Trial Chamber21 concluded that the conditions for the Court to exercise jurisdiction under RS Article 12(2)(a) were met. According to the latter paragraph, the Court has jurisdiction if “the state on the territory of which the conduct in question occurred” is a party to the RS. But Myanmar is not a party to this international treaty and has not even signed it.
According to the ICC’s reasoning, deportation is an inherently “transboundary crime,”22 and in this regard, the movement of Rohingya from Myanmar to Bangladesh is a crime partially committed on the territory of Bangladesh, which allegedly makes it possible to use RS Article 12(2) (a). The Court considered this fact sufficient to establish its jurisdiction, even though Bangladesh is neither the state where the acts took place nor the state of nationality of the alleged perpetrators.
According to the logic of the ICC, a restrictive interpretation of Article 12(2)(a) would be contrary to the object and purpose of the RS.23 Thus, in making their decision, the judges of the Pre-Trial Chamber refused to consider the intention of the states that drafted the RS to restrict the interpretation of territorial jurisdiction in such cases.24
Thus, as in the case of the Philippines, the ICC is attempting to exercise jurisdiction over a state that is not a party to the RS. While in the case of the Philippines it broadly interpreted the provisions of Article 127 on the residual obligations of the withdrawing state, in the case of Myanmar it arbitrarily extended its jurisdiction to a state that had never been party to the statute on the grounds that the crimes it was investigating were partially committed in Bangladesh.
The ICC and Immunity of State Officials
ACCORDING to a decision rendered by the UN International Court of Justice on February 14, 2002, in the case of the Arrest Warrant of April 11, 2000 (DRC v. Belgium), “in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a state, such as the head of state, head of government and minister for foreign affairs, enjoy immunities from jurisdiction in other states, both civil and criminal.”25 That position is widely confirmed in doctrine26 and in the work of the UN International Law Commission.27
For states parties to the RS, Article 27(2) applies. It states that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” Thus, RS state parties agreed that for the purposes of criminal justice within the framework of the ICC, immunities in relations between them do not apply. In other words, RS states parties collectively rejected, as it were, the immunity of their officials in favor of the jurisdiction of the ICC.
However, in accordance with RS Article 98(1), “The Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the cooperation of that third state for the waiver of the immunity.” This provision should also apply in the case of requests for assistance regarding the extradition of officials of states not party to the RS.
In 2019, the ICC Appeals Chamber, in its ruling in the case of the President of Sudan Omar Hassan Ahmad A1 Bashir (appeal filed by Jordan),28 groundlessly asserted that there is no international legal custom that gives the head of state immunity from the jurisdiction of international courts. According to this decision, such courts, “when adjudicating international crimes, do not act on behalf of a particular state or states. Rather, international courts act on behalf of the international community as a whole.”29 At the same time, in a manner completely uncharacteristic of judicial acts, the Appeals Chamber, in support of its position, cited the arguments of the judges who expressed a dissenting opinion,30 instead of presenting its own arguments, no matter how unconvincing they ultimately turned out to be.
Meanwhile, only states parties to the ICC, through participation in an international treaty (the RS), could waive the immunities of their officials in relations among themselves and with the ICC. As for states not party to the RS, the rules of general international law on immunities of state officials continue to fully apply both between them and in their relations with states parties to the ICC.
It is sometimes asserted that immunity from international criminal jurisdiction is not an international legal custom.31 It is argued that because permanent international criminal justice bodies did not exist before the 1990s, such a legal custom could not arise due to the lack of both practice and opinio juris. But this argument should be rejected. It is an indisputable fact that each individual state party to the RS is bound by the norms of international law on the immunity of foreign officials. These norms limit the extent to which each such state can exercise its criminal jurisdiction. They correspond to the rights of other states to have their state officials’ immunity from foreign criminal jurisdiction respected. Obviously, several (or even many) states may not circumvent these limits by concluding an agreement among themselves that would infringe upon the aforementioned rights of third states.
Another common argument is that the Nuremberg and Tokyo Tribunals, following World War II, or the international tribunals for the former Yugoslavia and Rwanda did not apply immunity to state officials.32 This argument should also be considered untenable. Neither Germany nor Japan raised the question of the immunity of their officials, nor could they have raised it, since the sovereign rights of these states were being exercised by the victorious allies.33 The Tribunals for Yugoslavia and Rwanda were created by resolutions of the UN Security Council, compliance with the mandatory provisions of which, by virtue of Article 103 of the UN Charter, is an obligation that takes precedence over other international obligations.
Thus, the ICC’s reasoning in the A1 Bashir case is nothing more than an attempt by the Court to arbitrarily and unilaterally expand its powers, limiting the sovereign rights of states that are not parties to the RS. This approach is contrary to the principle Pacta tertiis nec nocent nec prosunt, enshrined in Article 34 of the 1969 Vienna Convention on the Law of Treaties, which states that a treaty cannot create obligations or rights for a third state without its consent. In this case, the principles of the law of international organizations were also violated – in particular, the principle of their specialization and the unacceptability of ultra vires acts. The ICC Appeals Chamber’s assertion that there is no customary international law granting state officials immunity from prosecution by international courts is not supported by either state practice or opinio juris. It is not surprising that it was swiftly rejected by members of the expert community.35
On March 17, 2023, the ICC announced that the Pre-Trial Chamber had issued arrest warrants for the president of the Russian Federation and the president’s commissioner for children’s rights. The text of the warrants was not disclosed in order to “protect victims and witnesses and also to safeguard the investigation.”36 Official Russian representatives have regarded the warrants as legally void.37 But in some countries and international organizations, their extradition was welcomed at the official level.38 Moreover, some of them declared their willingness to enforce the warrants.39
Adding to the absurdity of the accusations that led to the warrants (the evacuation of children from the front line is groundlessly alleged to constitute unlawful deportation), the decision was made in violation of generally recognized norms of international law on the immunity of state officials, including absolute immunity of the current head of state from foreign criminal jurisdiction.
The legal meaning of the ICC issuing an arrest warrant is to impose an obligation on states parties to the RS to arrest the person against whom the warrant is issued. However, in a case where the person has immunity as an official of a state not party to the ICC and the Court has not secured the cooperation of such a state, the issuance of such a warrant contravenes RS Article 98 and is therefore unlawful.
Attempts to execute illegally issued warrants would also be illegal. It is important to emphasize that the ICC does not have its own enforcement apparatus. Accordingly, arrest warrants can only be executed by law-enforcement agencies of individual states. These actions are themselves a form of exercise of the jurisdiction of the state undertaking them. As discussed above, the fact that the warrants were issued by the ICC and not by national law-enforcement authorities does not exempt the state in question from the obligation to respect the immunity of foreign officials.
Thus, an attempt by any state to enforce the arrest warrant dated March 17, 2023, would constitute an internationally wrongful act and entail international legal responsibility.
The Role of the ICC in Conflict Settlement
THE states that created the ICC were guided by the belief that international prosecution of individuals responsible for the most serious international crimes would facilitate conflict settlement and postconflict reconciliation. In this regard, the RS provides a procedure for cooperation between the ICC and the UN Security Council as the main body responsible for maintaining international peace and security. The UN Security Council may either instruct the Court to investigate a particular situation or suspend an investigation that has begun. Thus, the ICC was conceived as an element of the international conflict settlement system under UN auspices.
In practice, the results of the ICC’s activities as a peace factor have proven to be mixed, to say the least.40
For example, not only was the attempt to criminally prosecute the current President of Sudan Omar A1 Bashir (“the situation in Darfur” was referred to the Court by the UN Security Council in 2005) undertaken in violation of the norms of international law on the immunity of heads of state, but it also jeopardized mediation efforts to end conflict in the region. In particular, officials of the League of Arab States stated that the ICC decision creates a dangerous precedent in the system of international relations and could have a very negative impact on the situation in Sudan and in the region as a whole.41 The Arab League, as amicus curiae, presented extensive arguments to the ICC in support of Jordan’s appeal, arguing that the goals of international criminal justice “cannot be achieved at any cost. The fight against impunity must take place within the framework of international law, including the rules that aim to guarantee orderly relations between states.”42
It is significant that not a single state has complied with the Court’s order. There is reason to assert that the African countries that received Al Bashir on visits either understood that he had immunity or that the ICC prosecution was counterproductive.
Thus, the Court’s role in the Darfur case has not been successful either in terms of administering justice or promoting national reconciliation. On the contrary, its actions in effect increased tensions in East Africa43 and led to a long-standing rift between the ICC and the African Union.
Another example of the Court not taking into account the real context of a political settlement was the investigation into the situation in Kenya. In 2013, Uhuru Kenyatta, who was facing charges from the ICC (in connection with the domestic political crisis of 2007-2008), was elected president of this country. As a result, the ICC found itself in the position of a body seeking, through criminal prosecution, to promote the resolution of a situation that in fact had already been resolved through compromises between political forces and an election. The investigation was closed in 2015, citing insufficient evidence. As a result, the prolonged work of the ICC in Kenya did not lead to results either in terms of the direct implementation of criminal justice (in a case involving a total of eight people, not a single verdict was rendered) or in terms of facilitating resolution of the domestic political conflict.
The above examples (and the list could be continued) indicate that the ICC, instead of serving as a means of the peaceful settlement of disputes, often becomes a source of new conflicts or problems.
In general, the fact that for a long time after the start of its work in 2002 the Court dealt exclusively with African cases (situations in the DRC, Central African Republic, Uganda, Sudan, Kenya, Libya, Côte d’Ivoire, Mali) gave rise to the African Union’s recommended “ICC withdrawal strategy,” which was approved by its highest body, the Assembly of the African Union.44
Unfounded Criminal Prosecution of Individuals
THE ICC also faces challenges respecting fundamental human rights, including protection from unlawful and unfounded prosecution. The most striking example in this regard is the case of former DRC vice-president Jean-Pierre Bemba, who was sentenced by the ICC to 18 years in prison. In June 2018 (after 10 years in custody at the ICC detention facility in The Hague), the ICC Appeals Chamber overturned his 2016 first instance conviction45 and cleared him of all charges of war crimes and crimes against humanity in the Central African Republic between 2002 and 2003.46
Bemba subsequently appealed to the ICC, demanding compensation in the amount of 68 million euros for 10 years of unjustified detention and damage to his property seized in Belgium, Portugal, and the DRC under the ICC order. This requirement was based on RS Article 85(3), which provides for the possibility of paying compensation in exceptional circumstances when a grave and manifest miscarriage of justice is discovered.
It is noteworthy that this was already the third claim for compensation presented to the Court by persons acquitted following trial (although the previous two involved significantly smaller sums: about 900,000 euros in the case of Mathieu Ngudjolo Chui and 27,000 euros in the case of Jean-Jacques Mangenda Kabongo). However, as in the two previous cases, the ICC, without providing any convincing grounds, refused to satisfy Bemba’s claims.47 Thus, the Court avoided clarifying important issues regarding proper compensation for individuals unjustifiably prosecuted by the Court, as well as the financial responsibility of the ICC and member states that enforced its orders for failure to ensure the safety of seized property of the defendants.48 This situation demonstrates structural problems in the activities of the ICC, resulting in its violation of fundamental human rights guaranteed by universal and regional treaties on the protection of human rights.49
Politicized Approach to the Administration of Justice
THE administration of international justice inevitably has a significant political dimension. It is normal for an international judicial body to take political considerations into account (as evidenced above, in the case of Kenya, it was the Court’s failure to take into account the objective political developments that led the investigation to a dead end). However, decisions of international courts must be based on law; political considerations must be considered to the extent that they support legal conclusions. In this regard, the following examples demonstrate the Court’s excessive reliance on political considerations.
This reliance, as well as the desire of certain states to exert undue political pressure on the ICC, became especially pronounced after the Court began investigating the alleged crimes of American military personnel in Afghanistan. An unprecedented development in the history of international courts was US president Donald Trump’s decision to impose personal sanctions on ICC Prosecutor Fatou Bensouda, several high-ranking officials of her office, and even members of their families.50 Moreover, Washington threatened to take restrictive measures against any legal entities or individuals who would assist the ICC in carrying out activities contrary to US interests.
One of the first things Karim Khan did after he took over from Bensouda in February 2021 was ask the Pre-Trial Chamber to resume consideration of the Afghan case. However, his request was about reorienting the work toward investigating the crimes of the Taliban and ISIS and deprioritizing other aspects of the case.51 The prosecutor cited a lack of financial and human resources, and the more serious, in his opinion, nature of the crimes committed by terrorist organizations. In practical terms, this meant the end of the inquiry into American crimes in the Afghan affair. Even if we assume that Khan acted in good faith purely on legal grounds, his decision to deprioritize the investigation into the crimes of NATO troops cannot be assessed outside the context of US restrictive measures against the previous ICC prosecutor. It can be assumed that it was these sanctions that became the main driving force behind the change in the approach of the ICC Office of the Prosecutor to the Afghanistan investigation. It is noteworthy that American sanctions against the ICC prosecutor were lifted on April 1, 2021,52 less than two months after Khan took office.
A politicized approach was also evident in the ICC investigation of the situation in Georgia (the events in South Ossetia in July-September 2008). In this case, the ICC Office of the Prosecutor:
• consistently ignored the information it received indicating that Georgian military personnel had committed crimes under the RS
• was inactive in its investigation for many years (apparently realizing that prosecuting representatives of only one side of the conflict would be perceived as partial)
• requested arrest warrants for three South Ossetian nationals on March 10, 2022 – two weeks after Russia launched the Special Military Operation [in Ukraine]
• after issuing the warrants, announced the closure of the investigation.
It is difficult to view this sequence of events as anything other than confirmation that the investigation into the situation in Georgia was conceived from the very beginning as a political project.
The political bias of the ICC is also illustrated by its approach to investigating the situation in Palestine. The official investigation launched in March 2021 is essentially at a standstill, despite the abundance of documented crimes under the RS, as well as repeated appeals to the Court from various states – the situation was first referred to the ICC by Palestine back in 2009,53 then officially again in 2018, after that by Palestine, South Africa, Bolivia, Bangladesh, Comoros, and Djibouti in November 2023, and finally by Chile and Mexico in January 2024.
Among other things, the contrast between the approaches of the current ICC prosecutor (and his predecessors) to the situation in Ukraine and the situation in Palestine is noteworthy. In the first case,54 Khan, on February 28, 2022, directly called on the states concerned to refer the situation to the ICC (in order to avoid the need to apply to the Pre-Trial Chamber for permission to initiate an investigation, which is required when a case is initiated by the prosecutor). On March 1-2 of the same year, the situation was referred to the Court by 39 states, and on March 2, the prosecutor announced the start of the investigation.
In the case of Palestine, however, 15 years have passed since the first referral, but the investigation has hardly progressed.55 Moreover, in 2023, Khan allocated the least funding (944,100 euros) to the Palestinian situation of all open investigations. Although the indicated amount is only one-fifth the budget for the Ukraine case (4,499,800 euros), it was for the investigation into Ukraine that the ICC Prosecutor requested additional voluntary donations from RS states parties. These and other facts prompted more than 250 lawyers, human rights activists, and politicians in December 2023 to send an open letter to the Assembly of States Parties of the ICC, calling on them to check Khan’s activities for compliance with the current standards of conduct of the ICC prosecutor – in particular, the principles of impartiality and the prohibition of discrimination.56
We cannot ignore the steps taken by the ICC in the context of the Ukraine crisis. The issuance of arrest warrants on March 17, 2023, was accompanied, in particular, by the following events:
• the replacement of one of the three judges of the Pre-Trial Chamber one day before the receipt of the prosecutor’s request to authorize the arrest warrants, even though it was made at the request of Judge Antoine Kesia-Mbe Mindua (DRC), who recused himself because he was busy with other cases
• the release on the same day from prison in the UK of the prosecutor’s brother, even though the date of parole after serving half of the assigned sentence (18 months) was known from the day it began: May 22, 2022
• the issuance of the warrants three days before a donor conference aimed at raising funds for the ICC investigation of “Russian war crimes.”
These coincidences – the replacement of a judge, the release of the prosecutor’s closest relative, the issuance of an arrest warrant on the eve of the donor conference – cited in a briefing of the official spokesperson of the Russian Foreign Ministry on March 30, 2023, gave grounds to assert that “the prosecutor and the judges are obediently following the course set by Western sponsors.”57
Problems in Organizing the ICC’s Activities
A NUMBER of organizational features of the work of the ICC call into question its independence, impartiality, and integrity as a judicial body. The most notable of these are the following:
– The unique role of the prosecutor, who has become practically the central figure of the ICC. It is the prosecutor who decides to initiate an investigation, controls its pace (including distributing resources among various investigations), determines the circle of persons to be held accountable, and decides to terminate an investigation. ICC judges can consider cases essentially solely on the proposal of the prosecutor. At the same time, the mechanism enshrined in the RS for judicial oversight58 over the actions of the prosecutor has proven to be ineffective in practice. And vertical oversight by a superior prosecutor, traditional in national systems, is for obvious reasons absent in the ICC.
The result, as one researcher put it, is that “the world acquired an independent prosecutor vested with the power, at least in terms of practical consequences of his actions, to change governments.”59 The fact that an institution that claims a special role in the administration of international criminal justice is entirely dependent on one person who is not under anybody’s oversight cannot be considered normal for a judicial body. Moreover, according to the same researcher, “it is becoming increasingly clear that achieving the lofty goal of removing policy from the field of international prosecutorial activity is not only unrealistic, but simply impossible.”60
– The possibility provided for in the RS (Article 116) to “receive and utilize, as additional funds, voluntary contributions from governments, international organizations, individuals, corporations and other entities.” The most important requirement for a judicial body is its independence. It must be not only formal, but also effective and, moreover, visible. Meanwhile, the ICC widely accepts voluntary contributions, including from states that publicly call on the Court to investigate certain crimes of specific states and individuals.61
Although officially contributions are credited to the ICC budget without reference to a particular investigation, it is clear that the sponsoring state at least assumes their “intended” use and will decide on future contributions depending on whether previous contributions were spent on purposes of interest to it. In fact, this leads to a desire to provide an unfair advantage to an interested party during the judicial consideration of a case, which, under international legal acts on combating corruption, amounts to unacceptable interference or bribery of the Court.
– Rendering contradictory decisions. Of course, in the practice of any court there may be errors that can be corrected either by a higher court or when the same court hears a new similar case. At the same time, from the ICC the participating states have the right to expect the ICC to minimize errors and other situations that require deviating from previously adopted decisions, especially considering the high level of financial demands of this Court. Practice, however, illustrates the opposite. The most striking example of the ICC’s inconsistency are the decisions made against certain states that refused to arrest the President of Sudan A1 Bashir despite an arrest warrant issued by the ICC.
Thus, in a decision adopted in response to such a refusal by Malawi, the Pre-Trial Chamber, while recognizing the existence of a customary international legal rule on the immunity of public officials from prosecution, paradoxically concluded afterward that there was an exception to it, by virtue of which the immunity of the head of state does not apply to charges of the most serious international crimes brought by international judicial institutions.62
In its decision on the DRC’s noncooperation with the ICC,63 the Chamber asserted that by referring the situation in Sudan to the Court and requiring the government of that state to “cooperate fully with and render any necessary assistance to the Court and the Prosecutor,” the UN Security Council allegedly implicitly abrogated the immunity of any Sudanese officials.64
When considering Jordan’s appeal against a similar decision of the Pre-Trial Chamber, the ICC Appeals Chamber, as stated above, put forward a new justification: that there is no customary rule of international law providing for immunity from international (rather than national) criminal jurisdiction, and that the ICC supposedly acts on behalf of the entire international community. Thus, at least three different justifications for the same legal position have been formulated by the ICC. Needless to say, the result is that each of these justifications remains unconvincing and, most importantly, there is no legal certainty as to what position the ICC will take the next time the issue comes before it.
– The inability of judges to reach coordinated positions, expressed in the excessively widespread practice of dissenting opinions of judges. The legitimacy of the institution of ajudge’s dissenting opinion in itself is beyond doubt. However, at the ICC, the relevant practice has acquired exaggerated form. For example, one decision of the ICC Appeals Chamber, rendered by three votes to two and consisting of 80 pages, was accompanied by a joint dissenting opinion of two minority judges consisting of 269 pages, a joint dissenting opinion of two majority judges consisting of 34 pages, and a dissenting opinion of the third majority judge consisting of 117 pages.65
Another decision, rendered by four votes to one and consisting of 90 pages, was accompanied by a joint dissenting 190-page opinion of all four judges of the majority, while the judgment itself is replete with references to the dissenting opinion.66 The volume of dissenting opinions calls into question the validity and credibility of the decisions made. Moreover, in the second case, it appears as if the main purpose of the dissenting opinion was to enable references to it to be included in the decision in order to enhance the “authority” of its contents. In fact, such approaches only undermine the authority of the Court.
The ICC’s Legitimacy Problem
AS DEMONSTRATED above, cases of the violation of customary and conventional international law in the practice of the ICC are far from isolated. In particular, these concern personal and functional immunities of state officials, the principle that international treaties are not binding on third parties, and the principle of voluntary subjection of a state to the jurisdiction of international courts. These norms are of particular importance in the international system, as they directly derive from the fundamental principle of the sovereign equality of states.
Moreover, the Court interprets the RS provisions too broadly (in particular, regarding the jurisdiction of the Court ratione temporis and ratione loci, as well as the principle of complementarity), clearly going beyond the competence granted to it by the states parties. This is coupled with selective enforcement, the ICC’s counterproductive role in conflict settlement, its susceptibility to undue political pressure, countries using the Court to settle scores with opponents, contradictory rulings, and problems with collegiality.
The totality of these violations and shortcomings, their consistent and deliberate nature, as well as the Court’s demonstrated inability and unwillingness to address them, suggests a gradual loss of legitimacy of the ICC.67
Put together, these factors have already led some state parties to the RS to withdraw from it (Burundi and the Philippines). Others have at various times announced plans to do so, although they have not yet implemented them (e.g., the African Union’s Withdrawal Strategy; withdrawal notices issued by Gambia and South Africa and subsequently withdrawn). At the same time, states participating in the RS in a number of cases refuse to cooperate with the Office of the Prosecutor (the situation in Kenya) and to execute arrest warrants issued by the Court (the A1 Bashir case).
Since 2015, only four new states have become parties to the RS. During the same period, there were two completed withdrawals, two pending withdrawals, and one declaration of intent not to become a party to the RS. In fact, the process of expanding participation in the ICC has stopped. This in itself would not be surprising for an agreement opened for signature more than a quarter of a century ago, if not for the fact that the largest and most influential states in the world do not participate in the RS, including three of the five permanent members of the UN Security Council. Meanwhile, even RS parties are refusing to cooperate with it on a number of matters, with one regional organization, the African Union, expressing doubts about the prospects of cooperation with the ICC, and another, the League of Arab States, persuasively criticizing its legal positions.
These and other circumstances give reason to believe that the fears of even the most ardent supporters of the ICC are justified, recognizing that “today the Court remains a fragile institution the future of which is uncertain.”68 As has been shown, responsibility for the unmet expectations and, moreover, the erosion of the legitimacy of the ICC lies with the organization itself, its specific officials, as well as with states and other entities seeking to abuse the judicial process for both short-term and far-reaching political purposes.
Conclusions
1. When establishing an international organization, including in the form of a judicial body, states do not have the right to vest the organization with powers that they do not possess themselves. In particular, the criminal jurisdiction of states, by virtue of generally accepted norms of international law, is limited by the immunity of foreign officials. In these circumstances, the jurisdiction of an international criminal justice body created by states is also limited by such immunities. The ICC’s claim that, due to its “international” nature, it is not bound by this restriction in relation to officials of states not party to the RS, has no basis in international law.
2. In its practice, the ICC has repeatedly violated both the provisions of its own statute and generally recognized norms of international law. Among the most obvious violations are attempts to exercise jurisdiction over acts allegedly committed on the territory and by nationals of a state not party to the RS.
3. The ICC’s claim to a unique international role stems from its creators’ vision of the special contribution of criminal justice to conflict settlement and postconflict reconciliation. These ideas, in particular, dictate the forms of interaction between the ICC and the UN Security Council enshrined in the RS. However, the practice of the ICC and the reaction of states and their associations to many decisions of the Court and its prosecutor shows that this institution has failed to fit into the international system of maintaining peace and security. On the contrary, the ICC has repeatedly become a factor complicating the settlement of interstate and intrastate contradictions.
4. The Court’s activities raise significant questions from the standpoint of jurisprudence. Contradictory decisions are common. There is an abuse of the practice of dissenting opinions of judges, sometimes replacing the official motivation of decisions. The interaction of the judicial chambers with the prosecutor, whose sole powers actually make judges dependent on him, is ambiguously structured.
5. The so-called arrest warrants issued by the ICC against the president of the Russian Federation and the president’s commissioner for children’s rights are unlawful from the viewpoint of both general international law and the RS. By issuing these warrants, the ICC, as an international organization, committed an internationally wrongful act.
6. National enforcement of arrest warrants issued by the ICC is a form of a state exercising its own criminal jurisdiction. Attempts to execute an arrest warrant issued by the ICC against officials of states that are not parties to the RS and in the absence of a relevant decision of the UN Security Council would be a violation of the rules on immunities and. therefore, an internationally wrongful act of the relevant state, entailing the international responsibility of that state.
7. In its activities, the ICC has deviated from both its original goals enshrined in the RS and, in general, from the norms and principles of international law. There are indications of its politicization and bias. The totality of violations of international law, procedural shortcomings, and interference by extraneous political factors committed by the ICC and its prosecutor prompt us to question whether the Court has lost authority in the eyes of a significant part of the international community and, as a consequence, its legitimacy.
NOTES
1 The adoption of the RS was preceded by lengthy preparatory work, which indicates the special sensitivity of states to issues related to the administration of international criminal justice. For example, the Convention on the establishment of the International Criminal Court, developed in 1934 under the auspices of the League of Nations, never came into force due to an insufficient number of ratifications. See, e.g.: Polyansky N.N. Mezhdunarodnoye pravosudiye iprestupniki voyny. Leningrad, 1945, 119 pp.; Volevodz A.G. “Istoricheskiye i mezhdunarodno-pravovyye predposylki formirovaniya sovremennoy sistemy mezhdunarodnoy ugolovnoy yustitsii,” A.G. Volevodz, V.A. Volevodz, Mezhdunarodnoye ugolovnoye pravo i mezhdunarodnaya yustitsiya, No. 2 (2008), pp. 2-9; Bassiouni Ch.M. “Chronology of Efforts to Establish an International Criminal Court,” Revue internationale de droit pénal. 2015/3-4 (Vol. 86), pp. 1163-1194.
2 For comparison: 116 states are parties to the Vienna Convention on the Law of International Treaties, and 114 states are parties to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.
3 The Russian expert legal community expressed doubts about the compatibility of the domestic legal system and the RS long before the decision was made not to become a party to it. See: Tuzmukhamedov B.R. “Rimsky statut MUS: vozmozhnyye voprosy konstitutsionnosti,” Moskovsky zhurnal mezhdunarodnogo prava, 2002 (2), pp. 165-173. Vedernikova O.N. “K voprosu o ratifikatsii Rimskogo statuta Mezhdunarodnogo ugolovnogo suda,” Ugolovnoye sudoproizvodstvo, 2010 (4), pp. 13-19.
4 Thus, in terms of the population of states not parties to the RS, the majority of the world’s inhabitants are outside the jurisdiction of the ICC.
5 Fedorov V.N. Organizatsiya Obyedinennykh Natsiy drugiye mezhdunarodnyye organizatsii i ikh rolv XXI veke. Moscow: Logos, 2005, p. 53.
6 Shaw M. International Law, 8th Edition. Cambridge University Press, 2017, p. 1001; International Court of Justice. Advisory Opinion of April 11, 1949, on the Reparation for Injuries Suffered in the Service of the United Nations. ICJ Reports, 1949. P. 9.
7 Examples of holding the ICC liable can be found in the practice of the Administrative Tribunal of the International Labor Organization, where labor disputes have been considered – and often won – by ICC employees. See, for example: International Labor Organization. Administrative Tribunal, 132nd Session. Judgment. No. 4405. P.-V. d. M. v. ICC, 7 July 2021. The Tribunal ordered the ICC to pay 160,000 euros as pecuniary damage, 40,000 euros as moral damage, and 5,000 euros in reimbursement of legal feeds to the applicant’s heirs who had expressed their intention to pursue the case after her death, https://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&pJudgment_no=4405&p_language_code=EN
8 For more details about the referral to the ICC of the Cote d’Ivoire situation, see: https://www.icc-cpi.int/cdi
9 For more details about the referral to the ICC of the Ukraine situation, see: https://www.icc-cpi.int/situations/ukraine
10 Incorporated as a result of amendments by the Review Conference held in Kampala in 2010; it has currently entered into force for 45 states.
11 Kibalnik A.G. “Prestupleniye agressii: obmanuty ozhidaniya mezhdunarodnogo ugolovnogo prava,” Vserossiysky kriminologichesky zhumal, Vol. 13, No. 2 (2019), pp. 300-310.
13 Decision on the Prosecutor’s request for authorization of an investigation pursuant to Art. 15 (3) of the Statute, https://www.icc-cpi.int/court-record/icc-01/21-12
14 Judgment on the appeal of the Republic of the Philippines against Pre-Trial Chamber I’s Authorization, https://www.icc-cpi.int/court-record/icc-01/21-77
15 Tunkin G.I. Teoriya mezhdunarodnogo prava. M.: 1970, pp. 362-366; Talalayev A.N. Venskaya konventsiya o prave mezhdunarodnykh dogovorov – (kommentariy). Moscow: Yurid. lit, 1997, pp. 21-22.
16 Bezhanishvili M. ICC Appeal Judgment on the Philippines – Keeping the Court’s Post-Withdrawal Jurisdiction on Life Support?, https://opiniojuris.org/2023/09/28/icc-appeal-judgment-on-the-philippines-keeping-the-courts-post-withdrawal-jurisdiction-on-life-support. The principle of voluntary recognition by states of the jurisdiction of international courts has been repeatedly upheld by the International Court of Justice; see, in particular: Corfu Channel Case (Preliminary Objection), Judgment. 25 March 1948. ICJ Reports, 1948. P. 15 at P. 27; International Court of Justice, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, Reports of Judgments, Advisory Opinions and Orders, 2008, p. 177 et al. (ICJ Reports, 2008, p. 177). R. 27/200. Para. 48. It is also supported by legal doctrine; see, e.g.: Shaw M., op. cit., p. 817.
17 see the discussion about final clauses and specifically Article 115 (Article 127 in the final text of the RS): United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Vol. II: Summary records of the plenary meetings and of the meetings of the Committee of the Whole, A/CONF. 183/13 (Vol. 11). See also: Clark Roger S. “Commentary to Article 127” in Triffterer O., Ambos K. The Rome Statute of the International Criminal Court. A Commentary. 3rd ed., pp. 2322-2324.
18 Dissenting opinion of Judge Perrin de Brichambaut and Judge Lordkipanidze, https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebdl8051fd38.pdf, para. 26.
19 Ibid., para. 27.
20 https://www.icc-cpi.int/court-record/icc-roc463-01/18-1
21 Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” No. ICC-RoC46(3)-01/18, 6 September 2018. Paras 70-72 // https://www.icc-cpi.int/court-record/icc-roc463-01/18-37
22 Ibid., para. 71.
23 Ibid., paras. 69-70.
24 Guilfoyle D. “The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar,” Australian Journal of International Affairs, Vol. 73, No. 1 (2019), p. 5.
25 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports, 2002, p. 3, https://www.icj-cij.org/sites/default/files/case-related/121/121-20020214-JUD-01-00-EN.pdf Para. 51.
26 Van Alebeek Rosanne. The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law. Oxford University Press, 2008, p. 169.
27 The topic “Immunity of State Officials from Foreign Criminal Jurisdiction” was included in the ILC work program in 2007. Special Rapporteurs R.A. Kolodkin (2008-2011) and C. Escobar Hernández (2012-2021) prepared eight reports on the issue; the corresponding draft articles were adopted in the first reading. Immunity of state officials from foreign criminal jurisdiction. Texts and titles of draft articles adopted by the Editorial Committee in the first reading. Doc. A/CN.4/L.969, 31 May 2022.
28 Situation in Darfur, Sudan. Judgment in the Jordan Referral re A1-Bashir Appeal, No. ICC-02/05-01/09 OA2, 6 May 2019, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_02593.pdf
29 Ibid., para. 115.
30 Ibid., footnotes 336, 338, 339.
31 Some experts confidently adhere to this viewpoint; see: Sadat Leila Nadya. “Heads of State and other government officials before the International Criminal Court: The Uneasy Revolution Continues,” Margaret Deguzman and Valerie Oosterveld, The Elgar Companion to the International Criminal Court. Cheltenham, 2020, pp. 96-127; others, while generally agreeing with it, express doubts: see, De Wet Erika. “Referrals to the International Criminal Court Under Chapter VII of the United Nations Charter and the Immunity of Foreign State Officials,” American Journal of International Law Unbound, Vol. 112 (2018), pp. 33-37. It was also reflected in the conclusions of the amici curiae set out in the decision of the Appeals Chamber of the Residual Special Court for Sierra Leone dated May 31, 2004 in the case against Charles Taylor. See Decision on Immunity from Jurisdiction, Section I. Submissions of amici curiae, https://wwwrscsl.org/Documents/Decisions/Taylor/Appeal/059/SCSL-03-01-I-059.pdf
32 See, for example: Mettraux G., Dugard J., du Plessis M. “Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa,” International Criminal Law Review, Vol. 18, No. 4 (2018), pp. 587-588.
33 As regards Germany, the legal basis for this was the Act of Unconditional Surrender of the German Armed Forces of May 8, 1945, and the Declaration of the Defeat of Germany and the Assumption of Supreme Power in relation to Germany by the governments of the
USSR, the United Kingdom, the USA, and the Provisional Government of the French Republic, dated June 5, 1945, which developed it.
34 Advisory Opinion of the International Court on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict brought by the World Health Organization, ICJ Reports, 1996, Paras 24-27; Tunkin G.I., op. cit., pp. 367-372.
35 Akande D. “ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals,” EJIL: Talk! Blog of the European Society of International Law, May 6, 2019; Jacobs D. “You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case,” May 6, 2019, https://dovjacobs.com/2019/05/06/you-have-just-entered-narnia-icc-appeals-chamber-adopts-the-worst-possible-solution-on-immunities-in-the-bashir-case
37 https://tass.ru/politika/17301121, https://www.mid.ru/ru/foreign_policy/news/1859387/#9
38 see: Russia/Ukraine: Statement by the [EU] High Representative following the ICC decision concerning the arrest warrant against President Putin, March 19, 2023, https://www.eeas.europa.eu/eeas/russiaukraine-statement-high-representative-following-icc-decision-concerning-arrest-warrant-against_en
39 https://www.zeit.de/news/2023-03/19/buschmann-sind-zur-verhaftung-putins-verpflichtet, https://www.dublinnews.com/news/273658937/if-putin-comes-to-ireland-he-would-be-arrested-says-dept-of-justice
40 see, e.g.: Benyera E. The Failure of the International Criminal Court in Africa. Routledge, 2022.
41 https://www.aljazeera.com/news/2008/7/19/sudan-genocide-charges-dangerous
42 The League of Arab States’ Observations on the Hashemite Kingdom of Jordan’s appeal against the “Decision under article 87 (7) of the Rome Statute on the noncompliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir.” ICC-02/05-01109. 16 July 2018 // https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_03714.PDF
43 Nouwen S., Werner W. “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan,” The European Journal of International Law, Vol. 21, No. 4, pp. 941-965.
44 Decision on the International Criminal Court, Assembly/AI/Dec.622(XXVIII). 28th Ordinary Session of the Assembly of the Union. January 30-31, 2017, Para. 8, https://au.int/sites/default/files/decisions/32520-sc19553_e_original_-_assembly_decisions_621-641_-_xxviii.pdf See also: Ngari Allan. Exit strategies from the ICC (commentary). The AU’s (Other) ICC Strategy, 14 Feb. 2017, https://issafrica.org/isstoday/the-aus-other-icc-strategy
45 Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo. Judgment of Chamber III, March 21, 2016, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2016_02238.PDF
46 Situation in the Central African Republic in the Case of the Prosecutor v. Jean-Pierre Bemba Gombo, Judgment of the Appeals Chamber, June 8, 2018, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_02984.PDF
47 https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01979.PDF.
48 Daley J. Birkett “Managing Frozen Assets at the International Criminal Court: The Fallout of the Bemba Acquittal,” Journal of International Criminal Justice, Vol. 18. Issue 3 (July 2020), pp. 765-790.
49 International Covenant on Civil and Political Rights 1966, paragraph 1, art. 9, et al.
50 Blocking Property of Certain Persons Associated With the International Criminal Court. Executive Order 13928 of June 11, 2020, https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking-property-of-certain-persons-associated-with-the-international-criminal-court
51 Statement of the Prosecutor of the ICC, Karim A. Khan QC, following the application for an expedited order under article 18(2) seeking authorization to resume investigations in the Situation in Afghanistan, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-khan-qc-following-application
52 Termination of Emergency With Respect to the International Criminal Court, Executive Order 14022 of April 1, 2021, https://www.federalregister.gov/documents/2021/04/07/2021-07239/termination-of-emergency-with-respect-to-the-international-criminal-court
53 The ICC prosecutor at the time, L. Moreno-Ocampo, began a preliminary investigation but closed it in 2012 due to the inability to determine whether Palestine is a state within the meaning of the RS, https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
54 Statement of procedural timeline, ICC website, https://www.icc-cpi.int/situations/ukraine
55 Mariniello T. “The ICC Prosecutor’s Double Standards in the Time of an Unfolding Genocide,” https://opiniojuris.org/2024/01/03/the-icc-prosecutors-double-standards-in-the-time-of-an-unfolding-genocide
56 https://twailr.com/open-letter-to-the-assembly-of-state-parties-regarding-the-otps-engagement-with-situation-in-palestine; see also: Egian H., Rabbani M. “Is the ICC Prosecutor Karim Khan fit for Purpose?” https://www.passblue.com/2023/11/28/is-the-icc-prosecutor-karim-khan-fit-for-purpose/#:~:text=Karim%20Khan%27s%20unprecedented%20politicization%20of,to%20address%20its%20declining%201egitimacy
57 https://www.mid.ru/tv/?id=1860654&lang=ru#5
58 see: Turner Jenia Iontcheva. “Accountability of International Prosecutors,” The Law and Practice of the International Criminal Court. Carsten Stahn. Oxford, 2015, pp. 383-407.
59 Schabas W.A. ” ‘O Brave New World’: the Role of the Prosecutor of the International Criminal Court,”Die Friedens-Warte, Vol. 83, No. 4, 10 Jahre Rom-Statut IStGH (2008), p. 13.
60 Ibid., p. 30.
61 Statement by the UK Minister of Justice. March 24, 2022, https://www.gov.uk/government/international-coalition-to-support-icc-russia-war-crimes-investigation; Official message of the Ministry of Justice and Security of the Netherlands, March 20, 2023, https://www.government.nl/latest/news/2023/03/20/extra-dutch-support-for-the-international-criminal-court; Official message from the Irish Ministry of Foreign Affairs. April 14, 2022, https://www.dfa.ie/news-and-media/press-releases/press-release-archive/2022/april-minister-for-foreign-affairs-simon-coveney-announces-3-million-for-the-icc.php
62 Situation in Darfur, Sudan. Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad A1 Bashir. No. ICC-02/05-01/09, December 12, 2011, Para. 43, https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2011_21722.PDF. The argument about the inapplicability of immunities to international crimes was, however, rejected by the International Court of Justice in the aforementioned decision in the case “On the Arrest Warrant of April 11, 2000,” Para. 58.
63 https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2014_03452.PDF (para. 29).
64 UN Security Council Resolution S/RES/1593 (2005), May 31, 2005, paragraph 2. If we agree with this argument, then there would be no need to talk about the customary legal nature of the norms governing immunities of state officials; otherwise, there would be nothing to “abrogate.”
65 Decision of the Appeals Chamber. ICC-01/05-01/08A. June 8, 2018
66 Decision of the Appeals Chamber. ICC-02/05-01/09 OA2. May 6, 2019
67 Ispolinov A.S. “Anatomiya krizisa: problemy normativnoy legitimnosti MUS,” Zakon, No. 2 (2024), p. 126; Ispolinov A.S. “Anatomiya krizisa-2: problemy subyektivnoy legitimnosti MUS,” Zakon, No. 3 (2024), pp. 68-75.
68 Sadat Leila Nadya. “Justice Without Fear or Favor? The Uncertain Future of the International Criminal Court” in The Past, Present and Future of The International Criminal Court / ed. Alexander Heinze and Viviane E. Dittrich, Brussels, 2021, p. 157.