Why Mongolia didn't arrest Putin for ICC

This is a reflection paper on the visit President Putin on Tuesday, September 3, 3034 to Mongolia  (RUSSIAN PRESIDENT VISIT MONGOLIA DESPITE THE ISSUANCE OF WARRANT OF ARREST BY THE ICC) 

TITLE: THE BLINDNESS OF THE ICC 

BRIEF OVERVIEW OF THE FUNCTIONS AND POWERS OF THE ICC 

Among the most serious crimes about which the international community is concerned are crimes of aggression per article 8 of the Rome Statue, war crimes per article 8 of the Rome Statue, crimes against humanity per article 7 of the Rome Statue, and genocide per article 6 of 
the Rome Statue.

After investigating these cases, the International Criminal Court (ICC) files charges against the accused where appropriate.

As a court of last resort, it is meant to support rather than to supplant national courts. Supervising in accordance with the Rome Statute, a global agreement.

For example the former president of Sudan was charged with genocide, war crimes, and crimes against humanity in the Prosecutor v. Omar Hassan Ahmad Al Bashir (ICC 02/05-01/09) case.

This case demonstrated the ICC's capacity to prosecute well-known people and reaffirmed its mission of preventing impunity, especially for heads of state who are already in office, despite obstacles relating to state cooperation. 

On March 17, 2023, the Russian president Vladimir Putin and the nation's commissioner for children's rights, Maria Lvova-Belova, both had arrest warrants issued by the International Criminal Court (ICC).

The warrants mentioned above pertained to purported war crimes perpetrated amid Russia's incursion into Ukraine, encompassing the illicit removal and conveyance of young Ukrainians from occupied territories to Russia. The International Criminal Court (ICC) bases its warrant petitions on allegations of war crimes under Article 8 of the Rome Statute, which defines the "unlawful deportation or transfer" of civilians as a serious violation of the Geneva Conventions. 

The accusations against Putin and Lvova-Belova centre on the wrongful deportation of children from Ukraine, which has been acknowledged by the ICC Prosecutor as a violation of these principles. 

JURISDICTION AND ADMISSIBILITY (ARTICLES 12-17) 

Crimes committed on the territory of states parties to the Rome Statute or by citizens of those nations fall under the jurisdiction of the International Criminal Court (ICC); non-member states may accept the Court's jurisdiction on an individual basis as stated in Article 1 of the Rome Statute.  

The ICC is based on the principle of complementarity Article 17 states that unless a state is really unable or unwilling to conduct the investigation or prosecution, the state's investigation or prosecution of a case is not admissible before the ICC.

The complementarity principle states that national jurisdictions are not superseded by the International Court of Justice (ICC), which functions as a court of last resort.  The ICC may be referred to cases by States Parties, the UN Security Council, or the Prosecutor on their own initiative (proprio motu), as stated in Article 13.

The International Criminal Court (ICC) brings cases against people, not nations or organisations, making them answerable for their deeds.

This is the reason why the warrant issue by the ICC was not against Russia as a State even though it may appear that Russian is at war 
with Ukraine but against person allegedly to have perpetuate criminal offence within the context of the Roman Statue.

Despite the fact that Russia is not a signatory to the Rome Statute, the ICC has jurisdiction because the alleged crimes took place in Ukraine.

Following Russia's initial assault in 2014 the annexation of Crimea and later its full-scale invasion in 2022, Ukraine acquiesced to the jurisdiction of the ICC on an as-needed basis. Despite the fact that neither Russia nor Ukraine are parties to the Rome Statute, Ukraine made official statements under Article 12(3) permitting the ICC to look into crimes committed on its territory. 

BLINDNESS OF THE ICC? 

The Russian president will be detained and taken to The Hague to face prosecution in accordance with the conditions of the warrant if he sets foot in any of the 124 member states of the court, including Mongolia.

How is it possible that the "blindness of the ICC" is the reason behind the president of Mongolia's inability to apprehend or imprison President Putin?

Stated differently, there are pertinent facts that the ICC has chosen to ignore or conceal, and these could be the cause of some of the 124 member’s inability to comply with an arrest warrant. 

The inability of Mongolian authorities to arrest or detain Russian President Vladimir Putin, despite Mongolia being a signatory to the International Criminal Court (ICC) treaty and the existence of an ICC-issued warrant for Putin’s arrest, discloses the complex intersection of 
international law, geopolitics, and economic considerations. 

ECONOMIC DEPENDENCE ON RUSSIA 

Mongolia is vulnerable to a decline in relations with Russia because of its close economic links to that nation.

The two countries have a long history of economic collaboration, particularly in the mining, energy, and transportation sectors.

Mongolia depends heavily on Russian gas and oil to power its economy, and Russia provides a large portion of Mongolia's energy needs. 

Any attempt to imprison Putin might jeopardise these vital commercial ties, resulting in energy shortages and serious economic ramifications for Mongolia. Russia's economic influence over Mongolia acts as a strong deterrent to any action that would annoy Moscow.

So, the question is, are there any assurances or guarantees that will add to the advantages or supplement that Mongolians get from Russian?

In the event that such a guarantee is lacking, is the International Criminal Court (ICC) unaware of the economic disaster that Mongolia may face or has it closed its eyes in an attempt to enforce its mandate to imprison or arrest President Putin?  

LACK OF MILITARY APPARATUS 

Particularly in comparison to Russia, which has among the strongest armed forces in the world, Mongolia has extremely little military might.

If Mongolia followed the ICCs warrant, it would lack the military tools required to repel or neutralise any Russian reprisal. Given this, one could interpret Mongolia's decision to postpone detaining Putin as a calculated move to prevent inciting a military reaction from Russia that would undermine regional stability and jeopardise national security. Is the ICC aware of these challenges or has turned blindness to these facts? 

And what are the mechanisms put in place to ensure that in the event the Mongolian government fulfils its obligation, a possible retaliation from the Russian state will be prevented? 

THE POSSIBLE THREAT POSED BY RUSSIA'S NUCLEAR CAPABILITY 

Russia's nuclear capability is another important aspect that probably had an impact on Mongolia's decision. As one of the top nuclear powers in the world, Russia has become more adept at using its arsenal to gain geopolitical clout under President Putin. Even if it is unlikely, the threat of nuclear escalation adds another degree of deterrence against acts that could enrage Moscow. 

Putin's administration has shown time and again that it is prepared to employ nuclear threats as a tool of pressure in international relations, especially when it comes to disputes with the West.

Any nation thinking about taking steps that would enrage Russia must take the threat of a nuclear arms race into serious account, especially a smaller and less powerful country like Mongolia.  

IN CONCLUSION,  

This reflection paper looks at relevant facts that the ICC may not have considered in issuing a warrant arrest against President Putin, which will make the enforcement of the warrant arrest by its members very difficult.

A case study is the reason for the failure of Mongolian authorities to arrest or detain Russian President Vladimir Putin, despite Mongolia being a signatory to the International Criminal Court (ICC) treaty. The existence of an ICC warrant for Putin's arrest reveals the complex intersection of international law, geopolitics, and economic considerations. 

The writer, Michael Chris Tetteh is an LLM student from the University of Ghana, Law School 

Email: michaelchristetteh@gmail.com