ICC members obliged to arrest Putin, but holding them accountable for noncompliance is extremely difficult, says ICC prosecutor’s adviser

After Donald Trump’s statement about a possible meeting with Vladimir Putin in Hungary, debate has reignited over the International Criminal Court (ICC) arrest warrant issued against the Russian dictator in March 2023. If the visit takes place, it will mark the second time Putin has entered a country that has ratified the Rome Statute, which obliges signatories to detain individuals wanted by the ICC. However, it would be the first such visit to a member of the European Union.

Hungary is still legally bound to enforce the arrest warrant, even though Budapest has begun the process of withdrawing from ICC jurisdiction, Kevin Jon Heller, Special Adviser to the ICC Prosecutor on War Crimes and a professor of international law at the University of Copenhagen, told The Insider.

“All EU member states are also members of the ICC. That includes Hungary, whose withdrawal from the Court will not be effective until mid-2026. All ICC member states have a legal obligation under the Rome Statute to execute an arrest warrant when the perpetrator is present on their territory, and that is true even if the subject of the arrest warrant is a sitting head of state. The ICC Appeals Chamber has made clear that head of state immunity (personal immunity) does not apply before the Court and that an ICC member state does not violate head of state immunity by executing an arrest warrant duly issued by the Court.”

How Putin might travel to Budapest

Putin’s potential flight route is also of interest, as Hungary is landlocked and surrounded entirely by ICC member states. The route would most likely pass over the Balkans, said William Schabas, a professor of international law at Middlesex University in the UK. As Schabas explained to The Insider:

“If Putin enters an EU state, including Hungary, he is subject to arrest on the basis of the ICC arrest warrant. Hungary has withdrawn from the Rome Statute, but it remains bound by all of the obligations under Statute for one year. Of course, Hungary will not honour its obligation to arrest Putin any more than it honoured its obligation to arrest Netanyahu.

I think that if Poland, for example, were to authorize Putin to overfly its territory, it would not attempt to intercept the aircraft and arrest him. However, because of its obligation to arrest Putin, it is unlikely that Poland would authorize him to overfly the territory.

The situation is probably different if a state already permits Russian aircraft to overfly its airspace. It may be possible for Russia to figure out a route through the Balkans.”

“It’s difficult to imagine any EU state using force to ground a plane carrying a head of state, even for an ICC warrant”

Professor Heller agreed that a forced landing of Putin’s aircraft is extremely unlikely:

“In terms of airspace, if a plane carrying an individual subject to an ICC arrest warrant malfunctioned and had to land on the territory of an ICC member state, that state would be obligated to execute the warrant. That is why Netanyahu is generally careful to avoid passing through the airspace of member states. The relevant precedent here took place in 2013, when the Bolivian President’s plane had to land in Austria because a number of European states denied it access to their airspace and it did not have a viable route to Bolivia. Once the plane landed, Austrian authorities searched the plane because they (wrongly) suspected it was carrying Edward Snowden.

Whether a state could force Putin’s plane to land if it entered that state’s airspace is a much more difficult question. The primary example of such a scenario took place in 2021, when Belarus forced a Ryanair flight to land so it could arrest Roman Protasevich, a Belarusian opposition journalist. The latter incident was overwhelmingly condemned by the international community as violating international law, because Belarus’s claim that there was a bomb threat, which led it to scramble a fighter to escort the plane to Minsk, was clearly a pretext for the arrest. Does that mean forcing a plane to land to execute a legitimate arrest warrant from an international tribunal is never lawful? I wouldn’t go that far — but I also wouldn’t want to say it is generally lawful, either. What I can say is that it’s difficult to imagine any EU state using military force to ground a plane carrying a sitting head of state, even if it is to execute an ICC arrest warrant.”

No consequences likely

As the Mongolia precedent shows, an ICC arrest warrant does not guarantee that Putin will be detained if he enters an ICC member state. The same was true of Sudan’s then-president Omar al-Bashir, who was charged with genocide in Darfur but visited multiple member states without being arrested. Even after he was ultimately taken into custody back home, he was never extradited to The Hague.

“The Court’s judges can refer a non-complying state to the Assembly of States Parties or the Security Council and have in the past,” Heller said. “What actual consequences could be imposed is another story — Russia would obviously veto any Security Council resolution and the ASP has limited means of punishment.”

“Countries that have not complied with their obligations under the Rome Statute have yet to be sanctioned by the Court in any real way. In principle, they are liable for failing to respect their commitments in a treaty. There is a stigma attached to this. How much more the Court will be prepared to do remains to be determined.”