Is an ICC warrant sufficient to override diplomatic immunity in signatory nations?

Question

As per recent news:

The International Criminal Court (ICC) has issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes in Ukraine, a move dismissed by Moscow as meaningless.

The Hague-based court said in a statement on Friday the warrant was issued over Putin’s suspected involvement in the unlawful deportation and transfer of children from occupied areas of Ukraine to Russia.

In theory, each Member state is obliged to execute the arrest warrant. But at the same time, if Putin were to visit any of the signatory states, he's all but guaranteed to do so as a foreign official covered by diplomatic immunity. Which rule is supposed to take precedence in this case - the need to provide diplomatic immunity or the need to execute the arrest warrant?

If diplomatic immunity takes precedence, why is it claimed that Putin's travels will be restricted by the ICC warrant, at least while he's still President?

Answer 1

The very first warrant of arrest ever issued for a sitting Head of State by the ICC applies here.

After the ICC issued warrant for arrest of Omar Al Bashir, President of Sudan, he made 75 travels¹ abroad to 22 countries, 7 of which are signatories to the ICC.

So, at least from the point of practical law application, at least seven states have considered the diplomatic immunity above the ICC order.

On several occasions, the International Court of Justice², arguably the most authoritative court ruling on matters of international law, confirmed that heads of state enjoy “full immunity from criminal jurisdiction and inviolability”. This also appears to protect them “against any act of authority of another state which would hinder him or her in the performance of his or her duties”. — The Conversation

It is not known whether these 7 states have faced any legal consequences of their failure to comply with the decision of the Court they signed to.

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¹) 2009 to 2016, per the article date
²) The entire article discusses ICC (criminal), while this paragraph refers ICJ (civil). The ICJ (contrary to the ICC) may or may not be relevant here.

Answer 2

Yes and No.

While Article 27 of the Rome Statute does say that even acting heads of state are not immune from prosecution, Article 98(1) provides an exception to this rule:

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 ... of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

(In the context we are discussing, "the requested" state would be the ICC member state and the "third" state Russia).

Apparently this is the legal loophole that South Africa considered to avoid arresting Putin if he arrived for the BRICS summit there. (Note though that ultimately Putin didn't attend the summit personally).

Answer 3

History seems to show that yes, an ICC warrant is sufficient to override diplomatic immunity… partly because the International Criminal Court and Court of Justice are very different things and the tomes cited above apply to civil relations between governments, not to fugitive suspects.

ICC has issued 30-some warrants including several for government ministers and - before Putin - four for heads of state.

Omar Hassan Ahmad al-Bashir head of state of Sudan from 1989 until 2019, was indicted in 2009.

Uhuru Muigai Kenyatta, indicted in 2011, was president of Kenya from 2013 to 2022 but the charges against him stood until 2015.

Koudou Laurent Gbagbo was President of Côte d'Ivoire on his arrest in 2011. He was apparently released in 2019, and acquitted in 2021. Please don’t ask me how that works.

Muammar Muhammad Abu Minyar al-Gaddafi, was still leader of Libya on his indictment in 2011.

Answer 4

Yes

The principle of International Law, which under certain circumstances provide diplomatic immunity, cannot be applied to acts which are condemned as criminal by International Law (source):

The IMT was established for the punishment of the major war criminals of the European Axis, i.e. for the trial and punishment of German high officials who perpetrated aggression, war crimes, and crimes against humanity “in connection” with the Second World War. At the end of the trial, the IMT issued one of the most important judgments in the history of international law. On the question of immunity, the position of the IMT consisted of the following:

The principle of International Law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by International Law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings […]. On the other hand […] he who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law (emphasis added).

Another answer says some such diplomats were not arrested, this still may not mean that if arrested, they could present this as a violation of international law. There were protest activities during these visits. It was especially tough for al-Bashir in South Africa where courts and local activists intervened, and the whole situation was quite tense (source).

Surely, professional diplomats avoiding confrontation, leave alone the nuclear strike as Dmitry Medvedev now threatens, may first tell in a very polite and subtle way the head of state under warrant that maybe could defer the visit, "it is too rainy now". If this would not work, it would probably be less confrontation by declaring him persona non grata. The head of state will miss some meetings and events that may be important.