On 4 May 2023, H.E. Mr Volodymyr Zelenskyy, President of Ukraine, visited the International Criminal Court (ICC), where he was received by ICC President Judge Piotr Hofmański and ICC Registrar Mr Osvaldo Zavala Giler. © ICC-CPI
On 17 March 2023, the International Criminal Court (ICC) issued arrest warrants for two individuals, the Russian President Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, his Commissioner for Children’s Rights. The alleged crimes are the transfer of children from occupied areas of Ukraine to the territory of the Russian Federation under Article 8 of the Rome Statute establishing the Court.
Naturally, international lawyers have been the most active in offering their take on the significance of the arrest warrant, and it is now timely to reflect on these preliminary contributions. A quick look at the terminology used in various blogposts reveals that drawing the ‘implications’ or the ‘effects’ of the arrest warrants is the predominant framing. International lawyers are primarily tasked with establishing whether all state parties to the Rome Statute (123 states) now have an obligation to arrest the suspected international criminals in their territory and how the enforcement of such an obligation could, will or should proceed. This framing makes intuitive sense: how can accused perpetrators be now brought to trial?
Yet, international lawyers do not address the implications of the arrest warrant in an analytical vacuum. Implications must be drawn from something or from somewhere. A closer review of recent blogposts indicates that the public discussion around the arrest warrant has been quickly reduced to a much larger one on the sources of international law, and through that, ultimately, a concern with the criteria of the existence of international law as a distinct and positive ambition to knowledge. International law comes and ceases to exist only through such criteria, and so does the obligation to arrest Putin, as we shall see below. This post does not interrogate this ambition – rather, it asks whether the arrest warrant can be assigned a normative value that does not only depend on either its place in the positive legal epistemology or its effective enforcement.
How can one conceive of the warrant as having independent normative value – that is, a value that does not depend either on the interpretation of the positive sources or the likelihood of enforcement?
What makes this arrest warrant distinctively problematic from the positivistic perspective is the question of whether states that are parties to the Rome Statute ought to arrest heads of states in their jurisdiction (since Russia is not a party). This is not only relevant because President Putin is scheduled to travel abroad for a BRICS summit in South Africa in August this year, which in principle offers the conditions of his arrest. The question is also important because immunity crystallizes a tension internal to international (criminal) law positively construed. True, the ICC has made it clear in the Al-Bashir case that there is no vertical immunity for heads of states accused of international crimes – that is, no immunity before international courts as these ‘act on behalf of the international community as a whole’. Yet international lawyers struggle to establish the limits of horizontal immunity – that is, immunity claimed by heads of states vis-à-vis other states that they may visit – based on the general sources of international law.
Indeed, the latter kind of immunity is the most controversial one from the positive standpoint. On the one hand, international lawyers have examined the state of international customary law, which is one of the general sources of international law found in Article 38 of the Statute of the International Court of Justice (ICJ). Does custom permit one state to arrest the head of another state based on the arrest warrant of the ICC? Well, such permission depends on the general practice of states and legal opinions (opinio juris) whose review only highlights how rare arrest warrants of heads of states have been in the first place. When is a practice of permission (or its absence) robust enough? As Adil Haque argued, addressing this question either inductively or deductively presents risks of inconsistency and lack of representativeness. Recent research shows that that the arrest warrant prompted any reaction at all from only 43 out of the 197 states (21.82%).
On the other hand, commentators have recourse to the rules of interpretation of international law such as the Vienna Convention on the Law of Treaties (1969) to contend that the ‘objective and purpose of the treaty’ (based on the so-called ‘teleological’ approach to interpreting treaties according to Article 31(1) of the Vienna Convention) supports the view that an arrest of President Putin made by a state party to the Rome Statute would be compliant with international law. Note how positivism travels from the arrest warrant to the confines of its sources in order to alleviate the tension. Bearing in mind that the rules of interpretation are known to say pretty much what one wants them to, establishing horizontal immunity in positive terms can in fact only speak to the warrant’s very purpose by playing with these indeterminate rules.
[...] the relevant value can only be realized [...] if ICC arrest warrants are applicable to all heads of states without exceptions.
How can one conceive of the warrant as having independent normative value – that is, a value that does not depend either on the interpretation of the positive sources or the likelihood of enforcement? One idea is that international criminal law creates and maintains a community of a moral kind – a community that positive law formalizes but does not govern. This is because on this view, the very existence, development and normative force of international criminal law require all members of this community to continuously reiterate its foundations, purpose and boundaries via various forms of expression. On this view, the ICC’s appropriate role does not only consist in bringing accused perpetrators to justice, but also in communicating and clarifying the community’s values and the conditions of their violations to its members. However, to say that one of the warrant’s functions is expressive implies having defined a set of morally cognizable terms that community members can appropriate and that enables them to hold each other to account. Since international criminal law is concerned with individual liability for the gravest attacks on individuals, one may view the Court as speaking to – and drawing its legitimacy from – the moral community of humanity. From this perspective, the arrest warrant can bear significance in and of itself in performing that expressive role.
How does one understand the expressive role of the warrant specifically? While expressivism has primarily offered a justification of punishment, one can locate the warrant on a continuum of communicative practices with specific reference to the “Ukraine situation” (in the ICC’s terminology). That is, if the moral community of humanity is the relevant membership, individuals cannot claim immunity in their capacity as heads of states that are members of the UN Security Council. This refined community could then inform further processes of international criminal justice: in particular, a hypothetical trial. According to Antony Duff, for example, crimes are public wrongs derived from the value of citizenship in the domestic context, and the trial’s function is to call wrongdoers to account for violating this value. The categorical prohibition of immunity for international crimes could help specify the value to which the accused is answerable as a member of humanity’s moral community (as, for example, Massimo Renzo argues). Alternatively, one can imagine a community of responsible states holding each other to account on the basis of their claim to legitimacy, as I myself have argued elsewhere. In both cases, the relevant value can only be realized, importantly, if ICC arrest warrants are applicable to all heads of states without exceptions.
[...] if a trial of President Putin were ever to be held, its function would not be limited to establishing guilt or imposing punishment. More significantly, it would provide yet another occasion to elaborate on and communicate the contours of this community.
Expressivism also poses constraints on the legal process, however: if a trial of President Putin were ever to be held, its function would not be limited to establishing guilt or imposing punishment. More significantly, it would provide yet another occasion to elaborate on and communicate the contours of this community. But, by far, standing trial or receiving punishment does not exhaust all expressivist practices. That is why such an approach to the arrest warrant better reflects ‘a criminal law we can call our own’.
Alain Zysset is a Senior Lecturer at the School of Law, University of Glasgow. Alain’s research lies at the intersection of international law and political theory. His research has been published in journals across these fields including the International Journal of Constitutional Law, Global Constitutionalism, Transnational Legal Theory, Criminal Law and Philosophy, Critical Review of International Social and Political Philosophy, Ratio Juris and Canadian Journal of Law and Jurisprudence. Alain is also the author of The ECHR and Human Rights Theory (Routledge, 2017). His second monograph entitled Saving and Strengthening ‘Democratic Society’: The European Court of Human Rights in Populist Times is forthcoming with Cambridge University Press in 2024.