Lost Illusions, or How the International Criminal Courthas

POR: D. A. Medvedev

For citation: Medvedev D. A. Lost Illusions, or How the International Criminal Court has become a legal nonentity. Pravovedenie 69 (1): 24–42. https://doi.org/10.21638/spbu25.2025.102

A strive for justice and a desire to bring the powerful to liability for crimes against public good and humanity is the idea that has always united people. Yet not all embodiments of this idea are worth existing, the ICC being the case. Legal deficiencies of its constitutional document, the Rome Statute, in terms of its internal contradictions and incompliance of its provisions with the UN Charter, its political bias, selectiveness of its ‘justice’, unlawfulness of issuing arrest warrants for heads of sovereign states which are not parties to the Rome Statute, notwithstanding the fact that such warrants are ignored by many countries, as well as the fact that the ICC, in essence, has transformed from an international justice body into a tool of legal struggle, clearly shows its complete failure. In this respect it shall fall into the oblivion, while its judges, prosecutors and other officials who took unlawful decisions may and shall be prosecuted for crimes under the Russian criminal law.

In the author’s opinion

Russian lawyers should voice their comprehensive and well-based professional criticism of the ICC decisions at all forums, present international legal position of Russia in respect of the Special Military Operation, the Ukrainian conflict and other relevant challenging issues to the global legal community, media and people in different countries. Moreover, taking

into consideration deficiencies in the ICC’s activities the interested parties could consider a possibility of establishing another international criminal court, which will be spared of them.

This Court’s constitution shall be based on the established rules of international law, and it jurisdiction may be extended to the crimes of genocide, war crimes, crimes against human-

ity, and terrorist attacks.

Keywords: the International Criminal Court, international criminal justice, the UN Charter, im-

munities of the Heads of State, aggression, the UN Security Council, a legal war.

Quod licet Iovi, non licet bovi

The world keeps changing, and not always for the better. We have witnessed the

rapid degradation of many supranational legal structures, which have fallen victim to

their dependence on the will, funding and values of the so-called collective West. This is

true, for instance, for the International Criminal Court (the Hague Criminal Court). The

good intentions which guided those who established it two decades ago have evidently

paved the road to hell. The further, the more so.

Dmitry A. Medvedev — PhD in Law, Deputy Chairman, Security Council of the Russian Federation, 16,

building 1, ul. Vozdvizhenka, Moscow, 125009, Russian Federation

* The translation from Russian was made by E. A. Pavlenko.

24 Deplorable as it may seem, it is more than natural. Suffice it to remember the his-

tory of this legal institution, which has gone a short way from alleged demand to full

uselessness on the edge of absurdity, bias and cynicism. It is important to understand

what its current actions are conditioned by, how to react to them and what, in the end,

shall replace this international body, which has compromised itself so quickly.

It all started ceremoniously, so to say. A craving for justice has always united

millions of people on Earth. History holds examples of falling empires, whose rulers

at some point went euphoric due to their own lawlessness, only to be swept away in

the blink of an eye by the popular wrath. Yet it is usually difficult to bring the powerful

of this world to justice for crimes against the public good and humanity. That is why

supranational judicial authorities, not being subject to any national government, are

endowed with this task.

Establishment of international criminal tribunals after the Second World War was

the first attempt in history to assert the supremacy of law on a global scale, to achieve

justice and real equality beyond state, economic and ideological borders. The Nurem-

berg and Tokyo tribunals committed themselves to the task which the courts of Ger-

many, Japan and their former allies could not have accepted the responsibility for.

When the work of the international tribunals ended, legal scholars from various

countries proposed the establishment of a permanent international judicial body,

which could bring to justice those to blame for the most violent crimes against

humanity. The lingering Cold war impeded these plans. It was only on the cusp of

the 1990s that the idea of a permanent international criminal court was revived1

and in 1998 in Rome the Statute of the International Criminal Court was signed as

its charter document.

The ICC was established as an independent international organisation. Its main

body is the Assembly of States Parties, which includes all member states (125 at

present). The Assembly has a Bureau which shall assist the Assembly in the dis-

charge of its responsibilities (art.112(3) of the Rome statute). The main function,

i.e. bringing to justice those who committed the ‘most serious crimes of concern

to the international community as a whole’, is vested in the ICC. The Court consists

of 18 judges, elected by the Assembly, the office of the Prosecutor, elected by the

same body, and the Secretariat. The judges function as part of the Pre-Trial Chamber,

which initiates criminal proceedings and issues arrest warrants; the Judicial divisions,

which consider the case on the merits; the Appeals division, which reviews claims

in respect of acts and decisions of the lower divisions; and the Presidency, which

inter alia is responsible for the ‘proper administration of the Court, with the excep-

tion of the Office of the Prosecutor’ (art 38(3) of the Rome Statute). The head of

it is the President.

See: Schabas W. A. Chapter 1: The dynamics of the Rome Conference in The Elgar Companion

to the International Criminal Court. Ed. by M. deGuzman and V. Oosterveld. Cheltenham; Northampton:

Edward Elgar Publishing Limited, 2020. P. 4–5. See also: Summaries of the Work of the International

Law Commission: Draft code of crimes against the peace and security of mankind (Part II) — includ-

ing the draft Statute for an international criminal court // International Law Commission. Available at:

https://legal.un.org/ilc/summaries/7_4.shtml (accessed: 03.02.2025); International criminal responsibil-

ity of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and

other transnational criminal activities: Establishment of an international criminal court with jurisdiction

over such crimes // World Legal Information Institute. Available at: http://www.worldlii.org/int/other/

UNGA/1989/52.pdf (accessed: 03.02.2025).

Правоведение. 2025. Т. 69, № 1 25Under art.119 of the Statute, the Court may, on its own motion, determine the

admissibility of any case. Thus, the Court is the only and supreme instance in disputes

it is involved in, i.e. it performs as a judge in its own case (which, in fact, contradicts

the nemo judex in propria causa2 principle). All judges and other employees of the

ICC have international immunity and privileges on the territories of the member states,

including the Netherlands, where it is seated.

The ICC has jurisdiction over the most serious crimes, namely genocide, crimes

against humanity and war crimes. Yet its jurisdiction is not universal and covers

only crimes committed on the territory of its member states or by citizens of its

member states.3 Apart from the abovementioned controversial points, the Court’s

Statute has contained other provisions from the very beginning which in many

cases could render impossible the enforcement of its decisions (and they have, as

we will see later).

In any case, in 2002 the ICC Statute was ratified by the required number of

member states and came into force on July 1 of the same year. Back then, the situa-

tion in the world was absolutely different from what we can see now. It was clear that

approval of the Rome Statute (like any other international treaty) required representa-

tives of more than a hundred nations to seek mutually acceptable wording, striving for

enhancement of the cooperation in this sphere. Consistently advocating full compliance

with the UN Charter, the countries assumed that any contradictions could be gradu-

ally eliminated with a focus on the key principles of the international law enshrined in

the UN documents. Taking this into consideration, the Russian Ministry of International

Affairs approved the execution of the Rome Statute in the name and on behalf of the

Russian Federation in 2000.

Yet later the Hague Criminal Court displayed its political bias. The ICC itself com-

mitted grave violations of the acknowledged principles of international law. Against this

political and legal background, in 2016 Russia decided not to be party to the Rome

Statute4. The U.S. and several other countries acted in the same way. Taking into

consideration that China did not sign the Rome Statute, three out of five permanent

members of the UN Security Council are not parties to it.

The global community placed serious hopes on the Hague Criminal Court at first.

Yet at the very moment of its establishment it was quite clear that the legal structure

itself looked quite strange. Its charter documents initially contained a whole row of

inconsistencies, the main of them being clear discrepancies with most important

“No one is judge in his own case” (In Latin).

Many publications have been written about the ICC. For the most recent publications see: The

Past, Present and Future of the International Criminal Court. Ed. by A. Heinze, V. E. Dittrich. Brussels:

Torkel Opsahl Academic EPublisher, 2021. XXI, 783 p.; Commentary on the Law of the International

Criminal Court: The Statute. Vol. 1. Eds.: M. Klamberg, J. Nilsson, A. Angotti. 2nd ed. Brussels: Torkel

Opsahl Academic Epublisher, 2023. 1104 p.

See: Order of the President of the Russian Federation No. 361-rp dated 16.11.2016 “On the inten-

tion of the Russian Federation not to be party to the Rome Statute of the International Criminal Court”

// President of Russia. Available at: http://www.kremlin.ru/acts/bank/41387 (accessed: 04.02.2025).

Also see the communication of the government of the Russian Federation to the UN Secretary General

received 30.11.2016: Rome Statute of the International Criminal Court: Rome, 17 July 1998: [status

as at: 14.02.2025 10:15:47 EDT] // United Nations Treaty Collection. Available at: https://treaties.

un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&clang=_en#9 (accessed:

14.02.2025).

26 Правоведение. 2025. Т. 69, № 1applicable rules of international law – primarily with its cornerstone, the UN Charter,

which contains the fundamentals of the law and order in the post-war world. The UN

Charter is to be consulted when developing universal treaties between states, as well

as numerous regional and bilateral agreements.

Article 103 of the UN Charter stipulates that its provisions shall prevail over provi-

sions of any other international treaty. According to article 38 of the Statute of the UN

International Court of Justice the main source of international law are international trea-

ties (general and special), international conventions, general legal principles.

Yet the Rome Statute provided for its own hierarchy of sources of international

law. According to article 21 of the Rome Statute, the Hague Court shall apply, in the

first place, ‘this Statute, Elements of Crimes and its Rules of Procedure and Evidence’;

and only in the second place (only where appropriate), ‘applicable treaties and the

principles and rules of international law, including the established principles of the

international law of armed conflicts’.

Thus, the internationally established principles of international law under the UN

Charter may be applied by the Hague Court under the 1998 Rome Statute only in the

second place, after the Statute and the documents adopted by the Assembly and the

Hague Court itself. This way the established quasi-judicial mechanism was given a

leeway in the form of the right to ignore the UN Charter and the legal norms enshrined

in it. In fact, this distortion of the balance of the applicable international law in the

Rome Statute is inadmissible for any sovereign state, including Russia as a permanent

member of the UN Security Council.

Besides, the notion of ‘general principles of the criminal law’ used in the Rome

Statute is in its essence improper, as it does not differentiate between the national

criminal law (the US, for example) and the international law applicable to combating

cross-border crime.

All this ‘salad bowl of principles’ was obviously not in compliance with the national

interests of the Russian Federation (or any other sovereign state). Contrary to the iden-

tification sometimes applied in the legal science one should differentiate between the

Rome Statute, the charter document of the ICC, and the treaties entered into by the

USSR and its allies (other superpowers) during the Second World War, starting from

the Moscow declarations signed on 30 October 1943. More so that a reference to this

Declaration of the four major states can be found in article 106 of the UN Charter. The

Agreement entered by and between the governments of the USSR, the USA, Great

Britain and France to try the Nazi leaders and organisations accused of war crimes at

the London Conference on 8 August 1945 is fundamentally different from the charter of

the Hague Criminal Court as well. In terms of their international legal status, by virtue

of the UN Charter, the abovementioned documents are above any document passed

by the Hague Criminal Court.

Yet those who influenced the development of the ICC were not the least concerned.

For instance, flouting of this fundamental political and legal distinction (amalgamation

of the former and the latter under the umbrella term ‘international criminal justice’)

characterised the pro-NATO prosecution of the Serbian leaders in the framework of

the so-called International tribunal for prosecuting persons responsible for serious

violations of international humanitarian law committed on the territory of the former

Yugoslavia after 1991. Russian studies of international law have never admitted this

amalgamation5. Examples of such inconsistencies are numerous.

losov. M., 1997. (In Russian)

See, for example: International Law and the Fight against Crime / pref. A. V. Zmeevskii, Yu. M. Ko-

Правоведение. 2025. Т. 69, № 1 273.

As a result the ICC judicial practice raised legitimate questions, not only from legal

scholars. As time went on the ICC was increasingly demonstrating its dependency on

political and ideological factors which in fact shall be excluded from its practice. An ob-

vious inclination was developed towards condemning or pardoning only in the interests

of the so-called collective West on the basis of its much favoured double standards.

Curious as it may seem, this involved currying favour with a number of states (primarily

the USA) which were quite dismissive towards the ICC and its practice. It’s understand-

able, as in the West there is a tough hierarchy of relations which displayed itself recently

in the case of Benjamin Netanyahu, Yoav Gallant and others, when the European coun-

tries being parties to the ICC Statute at first voiced their intention to prosecute Israeli

leaders but after a tough rebuke from Washington started talking about the ‘exceptional

nature’ of the case and refused to prosecute the Israeli officials. Strictly speaking,

after that the ICC should have chosen to dissolve itself, as it is impossible to imagine

a greater contempt.

In general, according to the ICC site, it has considered 33 cases in more than

20 years; some cases are under consideration, including those in respect of several

political and military leaders from Africa (the Democratic Republic of the Congo,

Uganda, Sudan, Rwanda, Kenya, Libya, Côte d’Ivoire, Mali, the Central African Re-

public). They are accused of tortures, rape, robberies, massacre, kidnapping, de-

struction of peaceful settlements, abuse of prisoners of war and civilians, including

women and children.

Several persons involved in the trials were in fact condemned and imprisoned,

primarily immediate perpetrators in a limited number of countries, officials who were

testified against. However, a number of high-ranking war criminals went unpunished.

The Hague Criminal Court demonstrated discriminatory blindness and hearing loss in

their respect.

It is also evident that for many years the ICC has thoroughly considered the cases

of indisputably violent yet quite ordinary leaders of ethnic gangs, serial killers and

rapists. Up to their elbows in blood of their compatriots, they still were not powerful

political figures posing danger to the whole humankind. A question arises: are these

‘warlords’, leaders of conflicting African tribes and other criminals real ‘international

criminals’ the national justice cannot cope with?6 Was it really necessary to establish

such high-priced behemoth as the ICC to restrain and bring them to liability?

It is no coincidence that former Chair of the African Union Commission Jean Ping

told journalists that the Court is a toy of declining imperial powers7. Opinions spread

that apparently the ICC was only interested in prosecuting Africans who confronted the

Western influence, and used Africa as a laboratory for testing international criminal jus-

tice8. It should not go unnoticed that back in 2017 the African Union passed a resolution

calling on all African countries to cease cooperation with the ICC in terms of enforcing

W. Schabas writes about the ICC as follows: “Only few concluded cases matter. Many of those

accused were insignificant persons in little-known conflicts. With sentences of 12 or 13 years in prison

it is hard to believe that the Court deals with ‘those who bear greatest responsibility’ for ‘most serious

crimes of concern to the international community as a whole’’ (Schabas W. A. Op. cit. P. 19).

Bosco D. Why is the International Criminal Court picking only on Africa? (March 29, 2013) // The

Washington Post. Available at: https://www.washingtonpost.com/opinions/why-is-the-international-

criminal-court-picking-only-on-africa/2013/03/29/cb9bf5da-96f7-11e2-97cd-3d8c1afe4f0f_story.html

(accessed: 04.02.2025).

See: Bachmann S.-D. D., Sowatey-Adjei N. A. The African Union-ICC Controversy Before the ICJ:

A Way Forward to Strengthen International Criminal Justice? // Washington International Law Journal.

Vol. 29. 2020. No. 2. P. 249.

28 Правоведение. 2025. Т. 69, № 1arrest warrants for African suspects and to collectively withdraw from the ICC9. The

fact that the ICC is biased and acts in the interests of a number of Western countries

refusing to prosecute persons from the NATO countries was recognised by representa-

tives of various continents. For this reason in particular Burundi and the Philippines

declared their withdrawal from the Statute10

Another thing has attracted attention as well. For an ‘unknown’ reason the ICC

failed to consider events in the countries where justice, peace and humanism were

nothing short of a daydream yet where the US and their NATO allies were advancing

their interests. Thus, for almost twenty years (from 2001 to 2021) the NATO forces were

engaged in active military operations on the territory of Afghanistan, the state which

joined the ICC in 2003. According to media reports during all this period they com-

mitted actions which could be regarded as crimes of war11. Yet the ICC never did that.

Another example: in November 2017 the then-Prosecutor of the ICC, Fatou Ben-

souda, applied to the ICC Pre-Trial Chamber for a permission to initiate investigation

of crimes against humanity and war crimes committed by the Afghan opposition group

‘Taliban’*, war crimes committed by the Afghan government security forces, and war

crimes committed on the territory of Afghanistan starting on 1 May 2003 by US military

personnel and CIA officers. After eighteen months of consideration in April 2019 the

Pre-Trial Chamber rejected the request, stating that ‘an investigation into the situation

in Afghanistan at this stage would not serve the interests of justice’12. The Prosecutor

appealed to the Appeals Chamber, which in March 2020 reversed the decision13, thus

enabling the Prosecutor to initiate preliminary investigation, inter alia in respect of war

crimes committed in Afghanistan by US military personnel and citizens.

This was followed by a harsh reaction of the US, which is not a member of the

ICC, to the very idea of bringing their military personnel and citizens to liability in an

international tribunal. In June 2020 US President Donald Trump declared that the ICC’s

assertion of jurisdiction over U.S. military, intelligence, and other personnel in the

course of investigating actions allegedly committed by those personnel in or relating

to Afghanistan ‘constitutes an unusual and extraordinary threat to the national security

and foreign policy of the United States’14. Invoking authorities provided in US law the

President signed Executive Order 13928, under which the Secretary of State, in con-

sultation with the Secretary of the Treasury and the Attorney General, is tasked with

identifying any ‘foreign person’ that, in particular, has directly engaged in the ICC’s

efforts to investigate, arrest, detain, or prosecute any United States personnel without

the consent of the United States, or has materially assisted, sponsored, or provided

Ibid. P. 249–250.

The Philippines’ membership in the ICC comes to an end // Coalition for the Internation-

al Criminal Court. Available at: https://coalitionfortheicc.org/news/20190315/philippines-leaves-

icc#:~:text=As%20of%2017%20March%2C%20the,after%20Burundi%20withdrew%20in%202017 (ac-

cessed: 04.02.2025).

For war crimes in Afghanistan in more detail, see: Ning Y. How US evades responsibility for war

crimes in Afghanistan // Global Times. Available at: https://www.globaltimes.cn/page/202109/1235240.

shtml (accessed: 14.02.2025).

Pre-Trial Chamber II: Situation in the Islamic Republic of Afghanistan, No. ICC-02/17 // Inter-

national Criminal Court. Available at: https://www.icc-cpi.int/court-record/icc-02/17-33 (accessed:

04.02.2025).

The Appeals Chamber: Situation in the Islamic Republic of Afghanistan, No. ICC-02/17 OA4 //

International Criminal Court. Available at: https://www.icc-cpi.int/CourtRecords/CR2020_00828.PDF

(accessed: 04.02.2025).

International Criminal Court: U. S. Sanctions in Response to Investigation of War Crimes in Af-

ghanistan // Congressional Research Service. Available at: https://crsreports.congress.gov/product/

pdf/IN/IN11428 (accessed: 04.02.2025).

* Organization is recognized as an extremist in the Russian Federation.

Правоведение. 2025. Т. 69, № 1 29financial, material, or technological support for, or goods or services to or in support

of, any ICC efforts described above. Such persons can be subject to having property

blocked if that property is under U.S. jurisdiction; in addition, they can be denied entry

into the US15. On 2 September 2020 the US imposed personal sanctions 16 on the Chief

Prosecutor of the ICC, Fatou Bensouda, and Phakiso Mochochoko, the ICC’s Director

of jurisdiction, complementary and cooperation division17

Eventually, despite the newly obtained right to initiate investigation of war crimes

and crimes against humanity committed in Afghanistan the new ICC Prosecutor has

not yet charged any US military personnel who participated in the hostilities in Af-

ghanistan.

Five years later, having returned to office Donald Trump was quick to reiterate his

position towards the ICC. And he didn’t limit himself to condemnation. On 6 February

2025 the US President signed an Executive Order which imposed sanctions against the

International Criminal Court: U. S. Sanctions in Response to Investigation of War Crimes in Af-

ghanistan // Congressional Research Service. Available at: https://crsreports.congress.gov/product/

pdf/IN/IN11428 (accessed: 04.02.2025)..

Political and legal scholars have not reached consensus over the term ‘sanctions’ (see: Py-

atibratov I. S. Sanctions and unilateral restrictive measures: The problem of delineation of terms and

identity of phenomena Gumanitarnye nauki. Vestnik Finansovogo universiteta. 2020. Vol. 10, no. 6. P. 64.

(In Russian)). Nevertheless, the use of “sanctions” in respect of restrictive measures taken by states

unilaterally without a respective decision of the UN Security Council has been repeatedly criticised by

some scholars (see, for instance: Ryzhova M. V. Economic sanctions in modern international law PhD

in Law thesis abstract Kazan. P. 8. (In Russian); Kritskiy K. V. The terms “international sanctions” and

“unilateral restrictive measures”. Moskovskii zhurnal mezhdunarodnogo prava. 2016. No. 2. P. 2. (In Rus-

sian); Kritskiy K. V. Sanctions and unilateral restrictive measures in modern international law PhD in Law

thesis Moscow. P. 10. (In Russian); Alekseeva D. G., Alimova Y. O., Barzilova I. S. Law under sanctions

/ M. V. Mazhorina, B. A. Shakhnazarov (eds). Moscow, Prospekt Publ. P. 93–94. (In Russian). This criti-

cism is justified: while the term “sanction” is viewed as a coercive measure applied in the case of an

offence, i.e. a lawful measure, restrictive measures applied by states unilaterally without a decision of

the UN Security Council are not always lawful. In this respect, it is at least inaccurate to call the latter

‘sanctions’ in the legal sense. It is no coincidence that coercive measures adopted by the UN Security

Council are often called ‘sanctions’ in UN documents, while regimes created by these measures are

called ‘sanctions regimes’ (see: Document A/56/10: Report of the International Law Commission on

the work of its fifty-third session (23 April – 1 June and 2 July – 10 August 2001) // Yearbook of the

International Law Commission. 2001. Vol. II. P. 2. p. 78; Resolution 2170 (2014), adopted by the Secu-

rity Council at its 7242nd meeting, on 15 August 2014 (S/RES/2170). Available at: https://digitallibrary.

un.org/record/777420/files/S_RES_2170%282014%29-RU.pdf?ln=ru (accessed: 06.03.2025); Subsidi-

ary Organs of the United Nations Security Council // Fact Sheets. Available at: https://main.un.org/

securitycouncil/sites/default/files/subsidiary_organs_series_7sep23_.pdf (accessed: 06.03.2025)). On

the contrary, in certain UN acts the term ‘sanctions’ is not used to refer to unilateral coercive meas-

ures (see, for instance, Resolution “Human rights and unilateral coercive measures”, adopted by the

General Assembly on 19 December 2016 (A/RES/71/193). Available at: https://digitallibrary.un.org/

record/857550/files/A_RES_71_193-RU.pdf?ln=ru (accessed: 06.03.2025)). Nevertheless, in political

and journalistic discourses such measures are sometimes referred to as “sanctions” (see: Gevorgyan K.

“Unilateral Sanctions” and International Law // The International Affairs. Available at: https://interaffairs.

ru/jauthor/material/720 (accessed: 06.03.2025). (In Russian)). In this article, for the sake of conveni-

ence, the term “sanctions” is used inter alia to define unilateral coercive measures applied by states

without a decision of the UN Security Council.

Blocking Property of Certain Persons Associated with the International Criminal Court Designa-

tions // Office of Foreign Assets Control. Available at: https://ofac.treasury.gov/recent-actions/20200902

(accessed: 05.02.2025); US imposes sanctions on top international criminal court officials // The Guard-

ian. Available at: https://www.theguardian.com/law/2020/sep/02/us-sanctions-international-criminal-

court-fatou-bensouda (accessed: 05.02.2025). Later Executive Order N 13928 was repealed (see:

Executive Order 14022 of April 1, 2021 «Termination of Emergency With Respect to the International

Criminal Court» // Federal Register. Available at: https://ofac.treasury.gov/media/57411/download?inline

(accessed: 05.02.2025)).

30 Правоведение. 2025. Т. 69, № 1International Criminal Court in response to ‘illegitimate and baseless actions targeting

America and our close ally Israel’18. The US President stated that the conduct of the

Court ‘threatens to infringe upon the sovereignty of the United States’19. The US threat-

ened to impose ‘tangible and significant consequences’ on ICC officials, employees,

and agents, as well as their immediate family members, including the blocking of prop-

erty and assets and the suspension of entry into the United States20

It should be noted that the first person to face sanctions from the newly elected

President was Karim Khan, Prosecutor of the ICC, who initiated issuance of an arrest

warrant for the Russian President. In his Executive Order Trump, in particular, sus-

pended Karim Khan’s entry into the United States, and his property that is in or here-

after comes within the territory of the United States, is blocked21

Yet it was in terms of the arrest warrants issued for heads of sovereign states

that the ICC reached the pinnacle of nonsense and disutility, including Russia’s

President Vladimir Putin in respect of the situation in Ukraine22. Passing such deci-

sions the ICC officials were well aware of the fact that they would never bring any

practical result, saving propaganda consequences obviously in the interests of the

same Anglo-Saxon world.

Judges and officials of the ICC definitely shall not be considered insane or igno-

rant. These are experienced lawyers, who are well aware of the content of international

treaties and the limit of their authority. Yet they have never refused to perform some

‘ideological put-up job’, especially when it concerns heads of sovereign states.

Establishing the Hague Criminal Court23 the parties to the Rome Statute agreed

on a compromise. On the one hand, the Statute stipulates that immunities of the Head

of State or another senior official of the state provided by the international law ‘shall

not bar the Court from exercising its jurisdiction over such a person’ (article 27).

On the other hand, in the same document the Court commits itself to ‘obtaining the

Imposing Sanctions on the International Criminal Court: Executive order, February 6, 2025 //

The White House. Available at: https://www.whitehouse.gov/presidential-actions/2025/02/imposing-

sanctions-on-the-international-criminal-court/ (accessed: 14.02.2025).

Ibid.

Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin

and Maria Alekseyevna Lvova-Belova // International Criminal Court. Available at: https://www.icc-cpi.

int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and

(accessed: 05.02.2025). Also see: Problems of Legality of the International Criminal Court: Problems

of Legality of the International Criminal Court (Opinion of the International Law Advisory Board under

the Ministry of Foreign Affairs of the Russian Federation), // Ministry of Foreign Affairs of the Russian

Federation. Available at: https://www.mid.ru/ru/foreign_policy/legal_problems_of-international_coop-

eration/1949021/ (accessed: 05.02.2025); Opinion of the International Law Advisory Board under the

Ministry of Foreign Affairs of the Russian Federation: Problems of Legality of the International Criminal

Court [translated by grad. students V. V. Pchelintseva and A. M. Korzhenyak) // Moscow Journal of Inter-

national Law. 2024. no. 2. P. 92–104.

Being the main subjects of international law, the states may on the basis of treaties between

them establish a derivative subject of international law, for instance, an intergovernmental organisation,

an international judiciary etc. The competence of this derivative subject is defined by the states which

established it. See: Shaw M. N. International Law. 6th ed. New York: Cambridge University Press, 2008.

P. 1303. In this respect J. Klabbers rightfully said about international organisations: “Organisations are

creatures of their member states…” (Klabbers J. International Law. 2nd ed. Cambridge: Cambridge Uni-

versity Press, 2017. P. 92).

Правоведение. 2025. Т. 69, № 1 31cooperation’ of a respective state for the waiver of the immunity of its senior official

(article 98).

In fact the Hague Criminal Court without any waiver provided by respective coun-

tries introduced the practice of issuing arrest warrants for certain acting heads of sov-

ereign states (non-Western, as a rule). First warrants of this kind were issued in respect

of Sudan’s head of state Omar al-Bashir (in 2009) and Libya’s acting head of state

Muammar Muhammad Abu Minyar al-Gaddafi (in 2011). The case against al-Gaddafi

was terminated upon his death; the arrest warrant for Saif al-Islam al-Gaddafi, his son

and companion, the de-facto Prime Minister of Libya, has not been enforced yet, the

case being on the stage of pre-trial hearing.

As for Omar al-Bashir, Sudan refused to enforce the Court’s warrant, stating that

it was a ‘political’ document which contradicted to the national law, and the ICC itself

did not have respective jurisdiction. Nor was the warrant enforced in a number of ICC

member states (Malawi, Jordan, Uganda, Chad, the RSA and others) which Omar al-

Bashir visited. The legal positions of several countries from this list were considered

by the ICC Judicial Divisions, which largely formed the Court’s position on immunities

of senior officials of the states which are not members of the ICC. The ICC’s opinion in

this regard was mostly expressed in the decision of the Appeals Chamber concerning

Jordan’s refusal to surrender Omar al-Bashir.

In the opinion of the ICC, ‘no immunities under customary international law

operate in such a situation to bar an international court in its exercise of its own

jurisdiction’24. Thus, in essence, the ICC proceeds from the notion that there is

no rule of customary international law which would give immunity from arrest and

surrender of the head of state which is not party to the Rome Statute by the state

which is a member of the Statute on the basis of the request for arrest and sur-

render issued by the Court25

Being rather disputable, this and other assertions caused fair criticism from ex-

perts in international law and, naturally, representatives of national justice in various

countries.

I would like to emphasise the following. Whatever the interpretations of articles 27

and 98 of the Rome Statute, the very issue of arrest warrants by the Hague Criminal

Court for heads of sovereign states shall be qualified as a violation of international law,

first of all, the UN Charter. The reasons are as follows.

First, the UN Charter provisions prevail over the Rome Statute, as it was mentioned

earlier.

Second, the principle of sovereign equality of all UN members is the basis of the

UN (article 2). The heads of state represent the respective sovereign governments and

by virtue of such basic source of international law as international conventions they

‘enjoy full immunity from jurisdiction in other states, both civil and criminal’26. The viola-

tion of this by the Hague Criminal Court is an offence.

Third, the Hague tribunal’s encroachment on limitation of the sovereignty of a

state (in case of Russia, moreover, a permanent member of the UN Security Council)

through pushing towards an arrest of the head of state, thus impeding the performance

The Appeals Chamber: Situation in Darfur, Sudan: in the Case of the Prosecutor v. Omar Hassan

Ahmad Al-Bashir: Judgment in the Jordan Referral re Al-Bashir Appeal, No. ICC-02/05-01/09 OA2, 6 May

2019, para. 114 // International Criminal Court. Available at: https://www.icc-cpi.int/sites/default/files/

CourtRecords/CR2019_02856.PDF (accessed: 14.02.2025).

See: ibid, para. 117.

The existence of this convention in international law was conformed by the International Court of

Justice. See: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,

I.C.J. Reports 2002, p. 3, para. 51.

32 Правоведение. 2025. Т. 69, № 1of respective official functions, shall be also qualified as a violation of international law.

First of all, by virtue of the main task of the UN Security Council being maintenance of

international peace and security (article 24 of the UN Charter).

Fourth, the Hague Criminal court ignores the obvious fact that three out of five per-

manent members of the UN Security Council are not parties to the Rome Statute. This

decision was at different times taken by China, Russia and the USA. Hence by virtue

of article 34 of the 1969 Vienna Convention on the Law of Treaties and customary in-

ternational law27 the Rome Statute shall not create any obligations for the states which

are not its members (article 34 of the 1969 Convention), including those announced

by the Hague Criminal Court.

Fifth, the ICC officials shall understand that trying to limit the activities of the head

of state which is a permanent member of the Security Council they attempt to impede

the functioning of the UN’s main body, which is exclusively responsible for promoting

peace. When the international community is fundamentally divided and our planet is on

the brink of a third world war, the ICC’s decision in itself has increased the global risk.

The responsibility for this increasing threat to humanity lies on specific officials of the

Hague Criminal Court as well.

It is well-known that even before the high-profile ‘political put-up job’ in respect

of Russia’s President Vladimir Putin the Hague Criminal Court often had to run quite

slippery errands of its clandestine puppet masters. After the 2014 coup in Kyiv aided

by the USA28, refusal of the people of Crimea and Donbass to recognise legitimacy

of the coup, constant shelling of Donbass at the direction of Kyiv leaders and de-

facto genocide of its population Russia took measures to protect compatriots. Not

bothering itself with legal analysis of the abovementioned facts and the applicable

law the Hague Criminal Court obligingly supported the ‘legal war’ against our country

waged by the US and their satellites. A very contentious term, the ‘aggression’,

went into play. By the way, it was included in the ICC jurisdiction only after peren-

nial discussions. By the time the Rome Statute was signed in 1998 the parties had

not managed to develop a legally acceptable definition of the term ‘aggression’.

This issue was submitted to the Assembly, which in 2010 drafted amendments into

the Statute. These included definition of a circle of persons liable for this crime and

the procedure of bringing them to liability in the Hague Criminal Court. Yet the legal

standards introduced were not universal.

Pressurised by the US the Special Military Operation to defend Donbass in the

documents of the UN General Assembly was called ‘aggression’ by the arithmetic

majority of states (United Nations General Assembly Resolution ES‑11/1 ‘Aggression

against Ukraine’ dated 2 March 2022; United Nations General Assembly Resolution

ES-11/2 ‘Humanitarian consequences of the aggression against Ukraine’ dated 24

March 2022 and other documents of the UN General Assembly). Contribution was

made by other organisations under Western control, namely the International Monetary

See: Document A/6309/Rev.1: Reports of the International Law Commission on the second part

of its seventeenth session and on its eighteenth session // Yearbook of the International Law Commission,

1966. Vol. II. New York: United Nations, 1967. P. 226.

Preparation for the non-constitutional upheaval in Kyiv, instructions given to the rebels by the

US Embassy are comprehensively described in the book by former Ukrainian PM N. Azarov, who earlier

worked with the lawfully elected Ukrainian President, V. Yanukovych. See: Azarov N. Ukraine at a Cross-

roads. Notes from the Prime Minister Moscow, Veche Publ, 2015. 512 p. (In Russian)

Правоведение. 2025. Т. 69, № 1 33Fund (the IMF)29, the Institute of International Law30 and others. Finally, in March 2023

the Hague Criminal Court obediently announced the issuance of arrest warrants for

the President of the Russian Federation and the Russian Commissioner for children’s

rights.

From the legal standpoint this move did not withstand any criticism. The Western

countries use the term ‘aggression’ purely formally, in the meaning assigned to it

in the resolution of the 1974 UN General Assembly. According to the resolution,

aggression is ‘… the use of armed force by a State against the sovereignty, ter-

ritorial integrity or political independence of another State, or in any other manner

inconsistent with the Charter of the United Nations…’ which ‘…gives rise to inter-

national responsibility’31 (emphasis added). Applying this definition to the Special

Military Operation, the Western states ignore major issues of the fact and law, first

of all, the abovementioned upheaval in Kyiv in 2014 inspired by Washington, which

was in obvious violation of article 2 (7) of the UN Charter (on non-interference into

a state’s internal affairs). After this coup d’état Ukraine de facto was no longer a

sovereign state.

Another circumstance ignored by the West as a whole is that the use of armed

forces permissible under the international law (by way of self-defence, including pre-

ventive) is not aggression. Yet the main flaw in the international legal position of the

Western states is more serious: they ignore the fact that according to the UN Charter

establishing the fact of ‘aggression’ and taking respective actions is only the pre-

rogative of the UN Security Council, including affirmative vote of its five permanent

members, but not another body, be it with the UN or not, or another international or-

ganisation.

However, the states which are still parties to the Rome Statute did not implement

the ICC’s decision as well. Russia’s President visited one of these countries, Mongolia,

early September 202432. The visit proceeded in a warm and friendly atmosphere and

ended quite successfully. The Hague Criminal Court got almost hysterical. It immedi-

ately cracked down on Mongolia, stating that it failed to meet its commitments under

the Rome Statute as it had not arrested Russia’s President, thus failing to comply with

the ICC’s cooperation request.

According to the ICC, parties to the Rome Statute shall arrest persons for whom

the Court has issued warrants, ‘irrespective of their official status or nationality’. In

this context the statement made by the ICC that it performs its functions in respect

of ‘gross violations of the fundamentals of international law’33 sounds quite cynical.

Yet interfering with the official duties of the head of a sovereign state which is a

permanent member of the Security Council the officials of the Hague Criminal Court

aggravate the risk of failure to pass decisions in terms of the UNSC reacting to

threats to world peace.

A specialised UN institution Russia is a member of. For the IMF see its site: About the IMF //

International Monetary Fund. Available at: https://www.imf.org/en/About (accessed: 05.02.2025).

A non-governmental organisation. Established in 1873. For more details see its site: About the

Institute // Institut de Droit International. Available at: https://www.idi-iil.org/en/a-propos/ (accessed:

05.02.2025).

See its articles 1, 5 (Definition of aggression: [appendix to UN General Assembly Resolu-

tion 3314 (XXIX) dated 14.12.1974]. Available at: https://digitallibrary.un.org/record/190983/files/A_

RES_3314%28XXIX%29-RU.pdf?ln=ru (accessed: 14.02.2025)).

Official visit to Mongolia // President of Russia. Available at: http://www.kremlin.ru/events/presi-

dent/trips/75016 (accessed: 05.02.2025).

ICC: Mongolia’s refusal to arrest Putin was submitted for consideration of the Assembly //

United Nations Organisation. Alailable at: https://news.un.org/ru/story/2024/10/1457701 (accessed:

05.02.2025).

34 Правоведение. 2025. Т. 69, № 1In the document of the Hague Criminal Court accusing Mongolia of non-compli-

ance by Mongolia with the request to cooperate under the Rome Statute it is stated

that article 98(1) allegedly does not amend article 27(2) or provide for any exceptions,

i.e. in the Court’s opinion, the Statute does not provide for ‘the waiver of the immunity’

for heads of sovereign states. According to the Court, any other interpretation would

render the obligations of member states ‘senseless’ and the overall Court’s system

‘futile’, ‘contrary to the principle of effectiveness (ut res magis valeat quam pereat)’34

stemming from article 31 of the Vienna Convention on the Law of Treaties, ‘according to

which treaties should be interpreted so as to ensure their effective implementation’35

‘Futility’ is not to be disputed. The Hague Criminal Court has displayed this quality over

and over again.

As for the effectiveness principle, it should be said that the argument given by the

Court is distorted. In the course of interpretation of international treaties an interpreter

‘must give meaning and effect to all the terms of the treaty’ and ‘an interpreter is not

free to adopt a reading that would result in reducing whole clauses or paragraphs of a

treaty to redundancy or inutility’36

It should be mentioned that earlier the ICC recognised that there is an ‘inherent

tension’ between articles 27(2) and 98(1) of the Statute37, this tension being substan-

tively analysed in the doctrine38. All the abovementioned obviously demonstrates legal

and technical flaws in the Statute39, which make this already imperfect instrument

absolutely inapplicable.

In its Decision on Mongolia the ICC Pre-Trial Chamber stated that article 34 of

the Vienna Convention ‘is irrelevant to the matter at hand (whether the non-member

parties are bound by the Statute – remark), since the Court is not aiming to impose

obligations contained in the Statute to non-States Parties, but is rather seeking the

cooperation of States Parties in cases against individuals who allegedly committed

crimes under article 5 of the Statute on the territory of a State where the Court has

jurisdiction’. Yet this position is invalid as well: non-provision of immunity by party

to the Statute to the head of state which is not party to the Statute is extension of

the Statute to such state, as the latter has the right to claim immunities for their

senior officials, while the host country has the obligation to grant such immunities.

“So that the matter may flourish rather than perish” (In Latin).

Pre-Trial Chamber II: Situation in Ukraine. Finding under article 87(7) of the Rome Statute on the

non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of

Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, No. ICC-01/22, 24 October

2024, para. 34. // International Criminal Court. Available at: https://www.icc-cpi.int/sites/default/files/

CourtRecords/0902ebd1809d1971.pdf (accessed: 05.02.2025).

Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products: Report of the Ap-

pellate Body (adopted on 12 January 2000), AB-1999-8 (WT/DS98/AB/R), para. 80.

Pre-Trial Chamber I. Situation in Darfur, Sudan: The Prosecutor v. Omar Hassan Ahmad Al Bashir,

No. ICC-02/05-01/09, 13 December 2011, para. 37. // International Criminal Court. Available at: https://

www.legal-tools.org/doc/8c9d80/pdf (accessed: 05.02.2025).

See, for instance: Ispolinov A. S. Anatomy of a Crisis: Problems of Normative Legitimacy of an

International Criminal Court // Zakon. 2024. no. 2. P. 130–131. (In Russian); Kjeldgaard-Pedersen A.

Is the Quality of the ICC’s Legal Reasoning an Obstacle to Its Ability to Deter International Crimes?

// iCourts: iCourts Working Paper Series. 2020. no. 191. P. 15–17. Available at: https://papers.ssrn.

com/sol3/Delivery.cfm/SSRN_ID3570447_code2133408.pdf?abstractid=3570447&mirid=1&type=2 (ac-

cessed: 05.02.2025); Tladi D. The ICC Decisions on Chad and Malawi: On Cooperation, Immunities, and

Article 98 // Journal of International Criminal Justice. Vol. 11. 2013. no. 1. P. 199–221; Van Alebeek R.

The Immunity of States and Their Officials in International Criminal Law and International Human Rights

Law. Oxford; New York: Oxford University Press, 2008. P. 278.

Scholars’ opinion that ‘… the Court’s architecture is seriously flawed’ looks well-grounded

(Schabas W. A. Op. cit. P. 19).

Правоведение. 2025. Т. 69, № 1 35If the latter does not do that by virtue of article 27.2 of the Statute, it shall either

be considered to be in violation of customary international law or extending the rule

of article 27.2 of the Statute to the third state and its senior officials. There is no

third way.

The ICC displayed significant self-confidence when confirmed that ‘any arguable

bilateral obligation that Mongolia may owe to the Russian Federation to respect any

applicable immunity that international law may allow to Heads of State is not capable

of displacing the obligation that Mongolia owes to the Court, which is tasked with exer-

cising its jurisdiction…40. That is true: any international acts are inferior to the Statute,

in the opinion of the biased commentators from the Court.

In its correspondence with the Hague Criminal Court Mongolia referred to the

customary legal rule of immunities of the heads of states and the International Court

of Justice’s (‘ICJ’) judgment in the Arrest Warrant case as of 11 April 2000, which

confirmed its existence. In response the Hague Court reiterated its position: ‘while per-

sonal immunities operate in relations between States, they do not protect individuals,

including Heads of State, from prosecution by international criminal courts’, justifying

this by stating that the ICC ‘is inherently independent of States, strictly impartial and

acts in the general interests of the international community’41

All these arguments are absolutely politicised and legally null and void. Neverthe-

less, the Court pathetically stated that Mongolia prevented the Court ‘…from exercising

its functions and powers…’ and ‘failed to comply with its international obligations under

the Statute…’42, thus rejecting all Mongolia’s objections.

It should be mentioned that under article 98.2 of the Rome Statute ‘the Court may

not proceed with a request for surrender which would require the requested State to act

inconsistently with its obligations under international agreements pursuant to which the

consent of a sending State is required to surrender a person of that State to the Court,

unless the Court can first obtain the cooperation of the sending State for the giving of

consent for the surrender’. The 2019 Treaty on Friendly Relations and Comprehensive

Strategic Partnership between the Russian Federation and Mongolia (entered into force

in September 2020) is applicable in this sense. According to article 4 of this treaty

Russia and Mongolia shall ‘abstain from participation in any actions or support of such

actions directed against the other party’.

All this judicial fuss did not have any significant consequences for Mongolia or

Russia. The ICC Assembly decides itself on the measures to be taken against the

‘disobedient’. The Statute does not provide for any sanctions against a member

state which failed to comprehensively cooperate with the ICC in the course of exer-

cising its functions. In practice such sanctions have never been imposed. The head

of Sudan Omar al-Bashir in seven years after the ICC issued its first arrest warrant

in 2009 visited more than 20 countries, including the ICC members, yet in none of

them was he arrested43. No measures were taken against these states, although the

Pre-Trial Chamber II: Situation in Ukraine. Finding under article 87(7) of the Rome Statute on the

non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of

Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, No. ICC-01/22, 24 October

2024, para. 28.

Ibid, paras. 6, 29, 30.

See: ibid, para. 38 and findings.

See: ICC arrest warrant? No worries for Sudan’s Bashir who visited 22 countries in 7 years //

World Tribune: Window on the Real World. Available at: https://www.worldtribune.com/icc-arrest-war-

rant-no-worries-for-sudans-bashir-who-visited-22-countries-in-7-years/ (accessed: 14.02.2025); Nuba

Reports. Sudan’s president has made 74 trips across the world in the seven years he’s been wanted for

war crimes // Quartz. Available at: https://qz.com/africa/630571/sudans-president-has-made-74-trips-

across-the-world-in-the-seven-years-hes-been-wanted-for-war-crimes (accessed: 14.02.2025).

36 Правоведение. 2025. Т. 69, № 1arrest warrant for Omar al-Bashir was issued in the framework of the case initiated

by the UN Security Council (which, unlike the ICC, has the right to apply interna-

tional legal sanctions).

This proves to what extent the Court and its decisions are futile. Nevertheless, one

should not underestimate the scope and possible consequences of the ‘legal war’ the

Western countries continue to fight against Russia using international justice, along with

other hostile actions and unlawful restrictions. In essence, the ICC practice is almost

ready to legally justify kidnapping officials who enjoy immunities from the territories of

the countries which are not parties to the Rome Statute, more so that the ICC has not

only become a funnel in which any official of any state may be drawn, in case there is

a political order, but also a commonplace tool of political struggle. To say nothing of

arrest warrants for Vladimir Putin and Maria Lvova-Belova, the situation with the begin-

ning of the ICC’s investigation into the situation in the Republic of the Philippines and

the consequent arrest on 11 March 2025 and surrender to the ICC of the ex-President

of the Philippines Rodrigo Duterte is quite exemplary.

On 15 September 2021 the Pre-Trial Chamber authorised the ICC Prosecutor’s in-

vestigation of the situation in the Republic of the Philippines in respect of crimes which

fall under the ICC jurisdiction which allegedly were committed in the country between

1 November 2011 and 16 March 2019 in the framework of the so-called ‘war on drugs’

campaign44. This decision and further events are remarkable in the following respect.

First, the ICC did not have jurisdiction ratione temporis in respect of this situation in

general, as the investigation was authorised by the Chamber on 15 September 2021,

while the Philippines withdrew from the Statute on 17 March 2019. However, this did not

prevent the ICC judges from finding the basis for this jurisdiction with reference to its

own practice of interpretation of art.127 of the Rome Statute45 basing on the principle

of ‘if you want it, you can’. Second, the arrest and surrender to the ICC of the ex-President

of the Philippines Rodrigo Duterte were not the recognition of the ICC jurisdiction

by the Philippines, no longer a party to the Statute, but a surrender by the Marcos clan

(Ferdinand Romualdez Marcos Jr. is the current President of the Philippines) of their

political opponent from the Duterte clan46, i.e. the ICC in fact became a tool of clan

rivalry in the territory of the Philippines. Thus, media opinion that the authorization of

the investigation in the Philippines is ‘casting a dark shadow on the ability of the court

to do its job independently’47 quite accurately reflects the transformation of the very

essence of the Court: from an instrument of justice it has turned into an instrument of

dirty politics.

It is unclear what lawlessness we will witness further on. The West, which is

quickly losing its positions in the world and is not able to impose its will on the

majority of the humankind, goes for broke and will stop at nothing. This danger

shall be taken into consideration. I, for one, have already speculated on what may

follow the enforcement of an illegal decision of the ICC in respect of the head of

state which is not party to the ICC. The very enforcement of such decision may be

Pre-Trial Chamber I: Situation in the Republic of the Philippines: Decision on the Prosecutor’s

request for authorisation of an investigation pursuant to Article 15(3) of the Statute, No. ICC-01/21

// International Criminal Court. Available at: https://www.icc-cpi.int/sites/default/files/CourtRecords/

CR2021_08044.PDF (accessed: 18.03.2025).

See: Ibid, para. 111.

Filatov S. Duterte’s arrest and its implications for the Philippines, the US and China // The Inter-

nationalAffairs. Available at: https://interaffairs.ru/news/show/50683 (accessed: 18.03.2025); Smith T.

The ICC caught in clan rivalry in Philippines // Justiceinfo.net. Available at: https://www.justiceinfo.net/

en/140756-icc-caught-clan-rivalry-philippines.html (accessed: 18.03.2025).

Smith T. Op. cit.

Правоведение. 2025. Т. 69, № 1 37considered as casus belli in respect of the countries which participated in it. It is

needless to discuss how dangerous such decisions may be in respect of the head

of state of a nuclear power and permanent member of the UN Security Council.

To say nothing of the fact that persons in charge of such decisions may and shall

be prosecuted by investigative and judicial bodies of the country the head of which

is illegally brought to liability.

It should be remembered that among countries which accuse Russia of ‘ag-

gression’ are not only the USA48. Similar pronouncements were made by the NATO

member states49, as well as most members of the Council of Europe and the seven

most advanced economies, G750. The African union joined the efforts to accuse Russia

of violating the international law, encroachment of ‘territorial integrity and national sovereignty

of Ukraine’51

Yet one should not be satisfied that resolutions of the UN General Assembly are

not formally legally binding. In practice in economic arbitration and judicial proceedings

against Russia and Russian citizens references to such documents are important for

the ‘inner conviction’ of the judge or arbitrator.

Even ungrounded accusations require exhaustive answer. In this respect I consider

it necessary to reiterate our position in respect of the so-called ‘aggression’ of which

the West persistently accuses Russia, and the ICC actions as attempts to give legal

effect to these accusations.

Let us summarise the above.

First. After the upheaval in 2014 the power in Kyiv was taken by a dependent po-

litical regime under full control of the Western countries. Part of former Ukraine, intoxi-

cated and controlled by it, de facto is no longer a sovereign state. Therefore, Russia’s

defence of Donbass, which did not recognise the coup and was attacked by the illegal

2014 Kyiv government, cannot be legally qualified as ‘aggression’.

Second. Under the UN Charter establishing the fact of ‘aggression’ and acting in

this respect is the prerogative of the UN Security Council (including affirmative vote

of five states which are its permanent members). No other body, be it with the UN or

not, or another international organisation have such powers. Their statements are not

legally grounded and null.

US President Joe Biden accused Russia of violation of the UN Charter as it allegedly ‘waged a

brutal needless war’ against Ukraine (‘President Biden … accused Russia of violating the United Nations

international charter in its “brutal, needless war” against Ukraine’). See: Biden in UN speech accuses

Russia of “extremely significant” violation of international charter // Fox News. Available at: https://www.

foxnews.com/politics/biden-un-speech-accuses-russia-extremely-significant-violation-international-

charter (accessed: 05.02.2025).

The World Reacts to Russia’s Invasion of Ukraine // Lawfare. Available at: https://www.lawfare-

media.org/article/world-reacts-russias-invasion-ukraine (accessed: 05.02.2025).

G7 Leaders’ Statement on the invasion of Ukraine by armed forces of the Russian Federation //

Council of the European Union. Available at: https://www.consilium.europa.eu/en/press/press-releas-

es/2022/02/24/g7-leaders-statement-on-the-invasion-of-ukraine-by-armed-forces-of-the-russian-

federation/ (accessed: 14.02.2025).

Macky Sall, Chair of the African Union and President of Senegal, and Moussa Faki Mahamat,

Chairpersonn of the African Union Commission, in particular, called on the Russian Federation to ‘…

imperatively respect international law, the territorial integrity and national sovereignty of Ukraine’ (State-

ment from Chair of the African Union, H. E President Macky Sall and Chairperson of the AU Commission

H.E Moussa Faki Mahamat, on the situation in Ukraine // African Union. Available at: https://au.int/en/

pressreleases/20220224/african-union-statement-situation-ukraine (accessed: 05.02.2025)).

38 Правоведение. 2025. Т. 69, № 1Third. Encroachment of the Hague Criminal Court on limiting sovereignty of a state

which is a permanent member of the UN Security Council (demands of the arrest of

the head of this state, thus interfering with the official functions) is to be qualified as

an offence against international law. Firstly because the UN Security Council bears

primary responsibility for maintenance of international peace and security (article 24

of the UN Charter).

Fourth. Russia is not party to the Rome statute of 1998, on the basis of which the

International Criminal Court was established. In 2016 Russia refused to be party to this

international treaty. Therefore, the Statute does not create any obligations for our country.

Fifth. The actions of the Hague Criminal Court and its position contradict to the

principle of ‘pacta tertiis nес nocent nес prosunt’ (a treaty does not create obligations

or rights for a third state without its consent) enshrined in customary international law

and article 34 of the 1969 Vienna Convention on the Law of Treaties.

Sixth. According to the Rome Statute, the idea behind issuing an arrest warrant

is that the ICC requires an opportunity to further oblige the Statute member states, in

particular, to arrest the person for whom the warrant has been issued and surrender

this person to the Court (article 58 of the Rome Statute). Yet in case this person enjoys

immunity as an official of the state which is not party to the Statute, and the Hague

Criminal Court has not solicited assistance from such state, issuance of such a war-

rant and the Court’s request to a member state to arrest the abovementioned person

contradict to article 98 of the Statute.

Seventh. The President of the Russian Federation, being the current head of a

sovereign state, is absolutely immune from foreign criminal justice: both ratione mate-

riae52 and ratione personae53. In case there is no express waiver of this immunity the

international judicial bodies have no jurisdiction over the head of the sovereign state.

Eighth. According to the judgment of the international Court of Justice dated 14

February 2002 in the case ‘Arrest Warrant of 11 April 2000’, ‘in international law it is

firmly established that, as also diplomatic and consular agents, certain holders of

high-ranking office in a State, such as the Head of State, Head of Government and

Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil

and criminal’54. The fact that this rule of international law operates also in cases when

there arise a question of possibility of arrest the head of the state which is not party

to the Rome Statute by a state which is party to the Rome Statute is recognised in

the doctrine as well55. Moreover, in one case the ICC recognised the fact there are no

exceptions to this rule in respect to the situations when the state operates in its name56

Under ‘ratione materiae’ immunity we understand immunity from foreign criminal justice in

respect of an official of the state regarding actions this person executes within the framework of the

mandate and which can be defined as ‘formal actions’.

Subjective scope of ‘ratione personae’ immunity: the head of state, head of government and

the minister of foreign affairs are immune from criminal justice of a foreign state. ‘Ratione personae’ im-

munity is recognised automatically, in accordance with the rule of international law, in respect of public

authorities which represent the state in international relations. This immunity is applied in respect of all

actions (whether private or formal) committed by the representatives of the state.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J.

Reports 2002, p. 3, para. 51.

See, for instance: Ispolinov A. S. Trying on the Ring of Omnipotence: The International Criminal

Court and the Immunities of Heads of State // Rossiiskii iuridicheskii zhurnal. 2023. No. 2. P. 40, 52–53.

(In Russian); Akande D. International Law Immunities and the International Criminal Court // The Ameri-

can Journal of International Law. 2004. Vol. 98. no. 3. P. 410–411, 421.

In the decision on the non-compliance by South Africa with the request by the Court for the

arrest and surrender of Omar Al-Bashir the Pre-Trial Chamber, referring to the same paragraph 51 of

the ICJ judgment dated 14 February 2002 in case ‘Arrest Warrant of 11 April 2000’, stated: “The Cham-

ber is unable to identify a rule in customary international law that would exclude immunity for Heads

Правоведение. 2025. Т. 69, № 1 39Article 27 of the Rome Statute, in the meaning of which immunities of an official

shall not impede jurisdiction in respect of this person, contradicts to the established

customary international law. That this document allows for criminal prosecution of cur-

rent heads of sovereign states does not comply with fundamental principles of interna-

tional law enshrined in the UN Charter, firstly, the principle of the sovereign equality of

all its members, non-involvement into in the internal politics of another state.

Ninth. As of February 2025 125 states are parties to the Rome Statute57 (in the

UN there are 193 members)58. Despite their number, the ICC does not represent the

international community of states as a whole and does not act in its name. Three out of

five permanent members of the UN Security Council are not parties to it (Russia, China

and the USA), along with industrialised and densely populated Asian countries (India,

Pakistan, Turkey, Malaysia, Indonesia), many Arab countries59

Tenth. Judges, prosecutors and other officials who took unlawful decisions may

and shall be prosecuted for crimes stipulated in the Russian criminal law.

In respect of the position stated above a reasonable question arises: what is in

store for the international criminal justice in general? Russian lawyers should voice

comprehensive and well-based professional criticism of the ICC decisions at all fo-

rums. They should present international legal position of Russia in respect of the Spe-

cial Military Operation, Ukrainian conflict and other relevant challenging issues to the

global legal community, media and people in different countries. They should clarify

controversies, and do that actively and incessantly. They should reiterate our commit-

ment to the UN Charter and first of all principles of sovereign equality of all states, non-

interference with their internal affairs. They should ensure sure that specific officials of

the Hague Criminal Court who violate these principles be taken to liability in accordance

with international and Russian national law.

It seems entirely possible to develop on the regional level (for instance, in the

framework of BRICS) a concept of establishing an international legal body as an alter-

native to the Hague Criminal Court. This new judicial body in BRICS could reiterate the

common commitment of its member states to the UN Charter principles, including the

principles of immunity of heads of sovereign states from any foreign jurisdiction and

non-interference into internal affairs of the states, including by way of unlawful foreign

instructing of opposition leaders.

As for the ICC, unfortunately, at this point we need to recognise its total inef-

ficiency in performing its main task – bringing to liability all those guilty of genocide,

aggression, war crimes, those who escaped punishment under national law. All of

of State when their arrest is sought for international crimes by another State, even when the arrest is

sought on behalf of an international court, including, specifically, this Court (Author’s note: the ICC)”

(Pre-Trial Chamber II. Situation in Darfur, Sudan: in the Case of the Prosecutor v. Omar Hassan Ahmad

Al Bashir: Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with

the request by the Court for the arrest and surrender of Omar Al-Bashir, No. ICC-02/05-01/09, 6 July

2017, para. 68 // International Criminal Court. Available at: https://www.legal-tools.org/doc/68ffc1/pdf

(accessed: 15.02.2025)).

The States Parties to the Rome Statute // International Criminal Court. Available at: https://asp.

icc-cpi.int/states-parties (accessed: 05.02.2025).

Charter of the United Nations: Status as at: 14-02-2025 10:15:47 EDT // United Nations

Treaty Collection. Available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_

no=I‑1&chapter=1&clang=_en (accessed: 14.02.2025).

From the perspective of the population figures in non-member states this is the majority of the

Earth’s population.

40 Правоведение. 2025. Т. 69, № 1them, including citizens of Western countries and NATO member states. Of course, it

is doubtful that the Hague Criminal Court in its present form and role will make efforts

to this end. That is why it shall sink into oblivion.

Yet a thirst for justice that unites all people in the world is stronger than any sanc-

tions, pressure, hypocrisy and lies. And the international law developed by the global

community is stronger than the rule of force. If the Hague Court is irreversibly flawed

at present, the interested states will find an opportunity to establish a different inter-

national criminal court which will be spared of these flaws. Its charter shall be based

upon all universally recognised rules of international law, including the rule of absolute

immunity of senior officials. Its jurisdiction may be extended to the crimes of genocide,

war crimes, crimes against humanity, and terrorist attacks. Such attacks are often pre-

pared and committed on the territories of two or more states. International cooperation

in the framework of this new body will be able to prevent them.

There is a hope that this new court will be able to attain the goals declared in the

Rome Statute of the ICC which the ICC itself proved unable to attain.

Received: February 24, 2024

Accepted: March 10, 2024

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