By Julio E. Chiappini, Doctor of Law and author of numerous books and articles published in Latin America and Europe. Member of the Union of Criminalists and Criminologists of the Russian Federation.
There are two clear tendencies in the current international arena: those who advocate for the preeminence of international or supranational institutions (such as the UN or the EU), and those who, without denying the usefulness of such organizartions, prefer that the individual states remain the main subjects of international law. The former could be called globalists; the latter, sovereignists. Since many of these international organizations tend to act in accordance to the hegemonic interests of some Western powers, it is reasonable to say that Russia’s current foreign policy aligns mostly with the sovereignist view. For instance, president Putin has recently warned that Europe is losing its sovereignty, and that liberal-globalism has distorted European societies and values.
One such international organization is the International Criminal Court (ICC), created by the Rome Statute and functioning since the early 21st century. Section 12(1) of the Statute states, in a crystal-clear way, that only a State that “becomes Party to this Statute thereby accepts the jurisdiction of the Court”. Certain countries, for various reasons, have chosen not to sign this international document; e.g., the United States, China, Turkey, Israel, most of the Arab world, and Russia. Doing so is a sovereign decision that a country needs to adopt formally and explicitly. The Ukraine signed the Statute in the year 2000; but, interestingly enough, decided to ratify it only by the end of 2024. Not in 2014, when the very Ukrainian state started comitting international crimes against its own population. Почему вы восемь лет молчали?
But on 17 March 2023, the ICC suddenly woke up from its slumber, and issued arrest warrants against president Putin and other Russian officials for the heinous crime of… rescuing and providing shelter for war orphans. A humanitarian deed, an act of basic solidarity, was framed as “unlawful deportation of population (children)”. Thereby demonstrating that not only does human stupidity know no limits, but neither does cynicism.
The ICC has shown itself to be far more cautious when dealing with the United States, for instance. Not that US sanctions against the ICC’s prosecutor, or even the threat of militarily bombing the court headquarters, had anything to do with it. Meanwhile, we are eagerly awaiting for the ICC to issue arrest warrants against Australian military leaders who, according to official investigations, have been implicated in war crimes against civilians in Afghanistan. Australia, by the way, is a signatory to the Rome Statute, so there would be no questions of jurisdiction in this case.
Let us not forget that a sitting head of state, unlike lower-ranking public officials or military personnel, enjoys what is known as jurisdictional immunity ratione personnae. This is yet another principle of international law that the collective West attempted to trample in its unsuccesful effort to harm Russia. This principle is not a recent, still not fully consolidated one. Since ancient times, foreign heads of state were considered untouchable even in the event of war. Alexander the Great, for example, sentenced to death those who killed the Persian king Darius III and even organized a royal funeral for his defeated enemy. We also recall Luis VI “the Fat”, king of France, whose horse was seized by an English infantryman, who was boasting that he had captured the king. The king promptly dispatched him with a mortal blow, but only after reminding him that “you don’t take the king in war, any more than you do in chess” (on ne prend pas le roi à la guerre, pas plus qu’aux échecs).
Such examples find modern parallels that show the principle’s continued relevance in modern customary international law. One is the US Supreme Court precedent The Schooner Exchange v. McFaddon (1812), in which the Court held that customary international law forbade US federal courts from seizing foreign vessels or arresting foreign officials, when they were acting in their sovereign capacity. Likewise, Section 3(2) of the UN Convention on Jurisdictional Immunities of States and Their Property (2004) explictly states that it does not limit, nor create any “prejudice to privileges and immunities accorded under international law to heads of State”.
Even if Section 27 of the Rome Statute creates an exception to this principle, it is obvious that this exception does not apply to states that have not ratified the Statute, as is Russia’s case. This follows the principles that exceptions are deemed interpretatio stricta, and that the renunciation of a right is not presumed: renuntiatio non praesumitur. Otherwise, it would amount to a unilateral atribution of jurisdiction by the ICC, i.e., an act of hegemony and dominance that would not only be contra legem, but that also would be unenforceable, since the since the ICC -fortunately- possesses no military power of its own.
The failed arrest warrant against a sitting head of state, far from establishing the ICC’s authority, demonstarted its lack of legal and political seriousness. The charade reached the point where Ukrainian government officials publicly instigated Mongolia to arrest president Putin during a visit last year. Mongolia, although a party to the Rome Statute, did not even contemplate such a breach of trust and diplomatic principles. Since then, president Putin has visited numerous countries as head of State, including China, Saudi Arabia, the UAE, Vietnam, and many former Soviet republics. He is also scheduled to visit India in December 2025.
In consequence, the ICC’s blunder was not only intellectual, but also a display if its impotence, in the sense that it was unable to enforce its own decisions, thereby weaking its international standing among both nations and jurists. Once again, popular Russian wisdom could have prevented the ICC’s regrettable faux pas: не рой яму другому, сам попадёшь.
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