Deeply hindered by the lack of
enforcement mechanisms, international law can too easily be evaded or violated
outright by government officials of countries who easily sense the ability to
act so with impunity. Was the president of Mongolia such an official, and thus to
be considered as blameworthy, when he did not have Russia’s President Putin
arrested as soon as he touched down on Mongolian soil and sent to the
International Criminal Court in 2024 for war crimes committed in Ukraine,
including forcibly taking Ukrainian children to Russia? Is Mongolia’s acquiescence
just another case of the implacable impotence of international law?
On September 2, 2024, Russia’s
President Putin arrived in Mongolia. Despite “calls by the EU, the ICC, and
Ukraine for him to be arrested, Putin was instead warmly welcomed.”[1]
The International Criminal Court (the ICC) had issued an arrest warrant for
Putin 18 months earlier, and, because Mongolia had signed the ICC Rome Statute,
the country had “the obligation to cooperate with the court.”[2]
In fact, the court relied on country signatories to execute the court’s decisions,
“including in relation to arrest warrants,” according to ICC spokesman Fadi El
Abdallah.[3]
The E.U. position was that “Mongolia is a state party to the Rome Statute of
the ICC since 2002 with the legal obligations that it entails.”[4]
This would seem to put the government of Mongolia in a bind, but I contend that
the government acted correctly from the standpoint of international law.
The argument that the
government of Mongolia was in a bind runs as follows. According to the ICC
spokesman, “In case of non-cooperation, ICC judges may make a finding to that
effect and inform the Assembly of States Parties of it. It is then for the
Assembly to take any measure it deems appropriate.”[5]
In short, the Assembly could take punitive action against Mongolia for refusing
to hand Putin over to the ICC. Even so, government officials were naturally hesitant
to arrest the Russian president because Mongolia was “heavily dependent on
[Russia] for fuel and electricity.”[6]
Also, any measure adopted by the ICC Assembly would not come with an enforcement
mechanism, since the ICC relies on the countries that have signed the Rome
Statute for voluntary enforcement.
The tension between Mongolia’s
economic reliance on Russia and the legal obligation under the Rome Statute to
arrest Putin can be dissipated on a more fundamental level by realizing that
Russia was not a signatory of the Rome Statute, and thus Putin’s arrest warrant
was null and void. Mongolia’s obligation was to arrest anyone from a country
whose government had signed the Rome Statute and was thus under the jurisdiction
of the ICC. In such a case, the ICC’s deeply flawed enforcement of punitive measures
enacted by the court’s Assembly would be the major issue.
At a basic level, the ICC is
binding only on the countries whose governments signed the Rome Statute. Government
officials of other countries are as though in a Hobbesian state of nature with
respect to the court’s jurisdiction. So government officials like Putin and Netanyahu
could legally dismiss the ICC and even that court’s signatory countries; it is
not a question of the latter’s non-cooperation with the court, but, rather, the
court’s own jurisdiction. To hold government officials like Putin and Netanyahu
accountable, the world had, at least as of 2024, to rely on the voluntary
economic, political, and even militaristic efforts of countries, signatories or
not, to protect human rights from war crimes and crimes against humanity. How much humanity there is in leaving
such important constraints to the varying and shifting political and economic
interests of countries around the world is a question whose answer, at least as of 2024, did not yet reflect well on our species. Even the UN’s court, the International Court of
Justice, lacked an enforcement mechanism for its verdicts. Russia and Israel were countries in the UN, but not even a global international organization could
constrain Russia and Israel as they allegedly committed war crimes in 2024.
