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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?

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    If a member state arrests a world leader over a warrant what would happen to their leaders/officials when they visit other countries? It might legally override diplomatic immunity but that doesn't mean a country will take action over it. Not to mention if a leader does travel to another country it isn't just the host country that could take action to arrest the leader in question and while it might not be technically legal would they get released because of that?
    – Joe W
    Mar 17, 2023 at 20:48
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    @JoeW: Well, one could make the argument that that member had considered that question when deciding whether or not to ratify the Rome Statute - which cedes quite a bit of sovereignty.
    – einpoklum
    Mar 20, 2023 at 23:17
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    @einpoklum He was not indicted by the ICC and those actions happened prior to the ICC being founded. And the indictment means nothing if there is no arrest/trial for them
    – Joe W
    Mar 20, 2023 at 23:53
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    @kkm but we already an answer that shows another world leader with an ICC arrest warrant traveling to signatory countries and not getting arrested. I don't see how that can't be used to draw an answer for the current situation.
    – Joe W
    Mar 21, 2023 at 12:58
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    @kkm It isn't just the current situation, as we already have examples provided of other world leaders with an arrest warrant out for them traveling there should be enough information to derive an answer for what would happen if Putin traveled to other countries at this point in time. As the provided example is for a smaller and less powerful country I don't think it is that hard to extrapolate what that would mean for a much larger and more powerful country like Russia.
    – Joe W
    Mar 21, 2023 at 13:47

4 Answers 4

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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.


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.

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    any legal consequences of their failure to comply with the decision of the Court they signed to => there are no legal consequences spelled out in the ICC agreement, so the answer is clearly no. Mar 17, 2023 at 21:32
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    It probably depends on the country and on the relations towards the warranted persons. Maybe there are also cases where an ICC warrant was sufficient to override diplomatic immunity in a signatory nation. Mar 17, 2023 at 21:32
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    I don't like it when respondents condescend the poster for "not doing research". If everyone is expected to answer their own questions without assistance, then this website would not need to exist. The whole point of this place is to match those who do not have enough knowledge with those who do have the relevant knowledge at hand. Also these answers will likely be the first search result for general public years down the line, it is okay to have knowledge differential. Mar 20, 2023 at 3:13
  • @QuantumWalnut I removed the first sentence. On the other hand, the fact that there are not so many relevant cases makes prior research pretty much trivial, and the OP seems not to object on my remark. Nevertheless, removed. Mar 20, 2023 at 23:17
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    @einpoklum the quoted article specifically talks […] heads of state enjoy full immunity from […]. It does not talk about some states "decided to ignore their obligation" as you are suggesting. Should you have sources corroborating with your suggestion, please feel free to suggest an edit or, alternatively, submit another answer. Mar 20, 2023 at 23:45
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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).

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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.

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    Did any of these leaders get arrested while traveling as head of state?
    – Joe W
    Mar 19, 2023 at 23:24
  • Personally, I neither know nor care. Some were arrested… Of course, international law could see various differences between their being arrested abroad or on their home territory. Are you suggesting Mr Opposition is going to arrest his own leader on an ICC warrant, when he couldn't do it under his own territory's laws? Mar 20, 2023 at 21:40
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    You might not care but it is an important piece of information. If no country is willing to actually arrest a visiting head of state with an ICC arrest warrant out for them does it really matter if it is enough to get around diplomatic immunity?
    – Joe W
    Mar 20, 2023 at 22:50
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    You are the one providing the answer and I am asking for some details and supporting evidence for that answer. It is one thing to say that yes an ICC warrant overrides diplomatic/sovereign immunity but does that actually mean anything if no country is actually arresting a sitting head of state because of an ICC warrant?
    – Joe W
    Mar 20, 2023 at 23:48
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    I am asking if any of the leaders who you say had arrest warrants issued for them got arrested during their time in office. You are the one providing an answer and it is not up to the people reading it to do more research to be able to understand your answer. If the arrest warrants end up being symbolic because nothing ever comes out of them then it doesn't really matter what people say it means about diplomatic immunity.
    – Joe W
    Mar 21, 2023 at 23:23
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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.

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  • Is there any evidence to back this up such as someone with diplomatic immunity getting arrested because of these type of crimes and a warrent?
    – Joe W
    Mar 19, 2023 at 18:38
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    That it has not been done before, does not mean it will never be done. A diplomat with ICC arrest warrant does not come on daily basis to have examples very abundant. As for Putin, Germany said it would do.
    – Stančikas
    Mar 19, 2023 at 19:57
  • I took my liberty to add a relevant quote from the linked article. Mar 19, 2023 at 20:40
  • Your right it doesn't come up that often but we also have examples of leaders with an ICC arrest warrant out for them and them traveling to signatory countries without any attempts to arrest them. The other answer to this question shows that it isn't enough to get someone arrested and it gives an example of someone from a much less powerful country not being arrested.
    – Joe W
    Mar 19, 2023 at 21:04
  • "which under certain circumstances provide diplomatic immunity" <- Diplomatic immunity predates the current international legal system, and is at most recognized by it rather than relying on it. It relies on age-old customs, and very often on aspects of bilateral relations, formal or informal.
    – einpoklum
    Mar 20, 2023 at 23:21

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