What do Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu have in common?
Both leaders have been issued with arrest warrants by the International Criminal Court (ICC).
In theory, ICC arrest warrants are legally binding on states that have ratified the court’s founding 1998 Rome Statute. The court currently has 125 member states, including all EU nations, although United States, China and Russia are not members.
Netanyahu’s trip to Hungary earlier this month marked his first visit to an ICC member state since the arrest warrant was issued against him in November 2024 for alleged war crimes and crimes against humanity during the war between Israel and Hamas.
Israeli’s PM condemned the ICC’s decision as “antisemitic” at the time.
Hungarian Prime Minister Viktor Orbán this month said institution had been “degraded into a political tool”, with his government announcing Hungary’s withdrawal from the ICC hours after Netanyahu’s arrival on 3 April.
However, the process is lengthy and takes up to a year to complete after a formal written notification has been submitted. This means that at the time of Netanyahu’s visit to Budapest, Hungary was legally bound to arrest the Israeli PM under international law.
Are serving heads of state immune from ICC warrants?
“The court has only been around for a little over 20 years, so we have few examples of cases where arrest warrants have been issued against heads of state,” Mahmoud Abuwasel, Vice-President of the Hague Institute for International Justice, told Euronews.
“But in all of those examples there seems to be an issue with compliance and application of the statute”, he said.
The ICC’s judges ruled there is no legal basis for this when they dug into the case of Sudan’s former President Omar al-Bashir.
Al-Bashir was in power from 1989 until 2019, and arrest warrants were issued against him in 2009 and 2010 for alleged war crimes and crimes against humanity in Darfur.
Elizabeth Evenson, International Justice Program Director at Human Rights Watch, said that some states had asserted that al-Bashir couldn’t be arrested due to his immunity as a serving head of state.
“ICC judges looked into this and ruled that despite the fact he was a head of state, he had no immunity”, she told Euronews.
Since the ICC warrants were issued against al-Bashir, he has travelled to several countries that are member states of the court, human rights groups have highlighted.
According to legal experts, if an ICC member state believes it has sufficient grounds to override an arrest warrant, this should be done in consultation with the court.
“To my knowledge I haven’t seen any consultations by states or decision makers over how they would not be able to comply with arresting a head of state”, said Abuwasel.
So, what is the ICC’s remit of power?
The ICC does not have its own police force and relies on the cooperation of its members, made up of 125 countries who have signed and ratified the Rome Statute.
“For the ICC to succeed, it needs the support of governments, because its powers are limited,” said Evenson.
While the court’s judges have the power to take decisions and issue rulings, these only carry weight if states party to the ICC enforce them.
For instance, when Mongolia welcomed Putin last September, ICC judges ruled that the country was in breach of its legal obligations to honour the arrest warrant against him.
In March 2023 the ICC accused Putin of the war crime of illegally deporting hundreds of children from Ukraine — just over a year after Russia launched its full-scale invasion. At the time, the Kremlin branded the court’s decision as “null and void”.
But beyond this, judges could have asked the ICC’s body of members — known as the Assembly of States Parties — to take further action.
The Assembly of States Parties is the court’s management oversight and legislative body, which is made up of representatives from signatory states.
“They could have suspended Mongolia’s voting rights within the Assembly of States Parties, suspended its ability to nominate candidates to the ICC bench, where a Mongolian judge sits”, Evenson explained.
However, in practice their response has been described by experts as weak.
“So far, this body of ICC members has been really reluctant to take measures,” said Evenson.
For some legal experts, the ICC should be taking a harsher stance in order to punish non-compliance with arrest warrants.
“It seems odd to me that this occurrence of ignoring warrants has been going on for the past 15 years and that the court does not utilise its powers to fine the individuals responsible for non-compliance with an order”, Abuwasel said.
“The ICC has sanctioning powers, they can order imprisonment, which is an extreme action, but they can also order fines against individuals. Although it sounds ferocious to an extent, there has to be a deterrent for countries who don’t comply”, he added.
A pressure mechanism
Although critics say that the fact that ICC arrest warrants can be flouted renders them worthless, other legal experts argue that they can act as a pressure mechanism.
Since the arrest warrant was placed on Putin in March 2023, he has not visited any ICC signatories apart from Mongolia last year. Meanwhile, Hungary is the only ICC member state that Netanyahu has visited since the warrant was issued against him in November.
Although serving heads of states appear to bypass ICC arrest warrants, these orders do not expire once they are no longer in power.
In early March, the Philippines’ former President Rodrigo Duterte was arrested by the country’s authorities on the basis of an ICC arrest warrant over alleged crimes against humanity related to the Philippine drug war.
“Duterte’s case can be viewed as a kind of a counterexample and shows that ICC arrest warrants can work,” said Evenson. “A few years ago, few people would have believed it would have been honoured. Even though he’s no longer a serving head of state, people who have been in power can still be protected by governments.”
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