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The International Criminal Court (ICC)’s arrest warrants against Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova, accusing them of war crimes allegedly involving the unlawful transfer and deportation of Ukrainian children, have generated extensive discussion, including on Just Security. Are the warrants lawful even though one accused is a sitting head of State, and both are nationals of the Russian Federation, which is not a party to the Rome Statute, and has not consented to the ICC’s jurisdiction? Russia has objected to them, a controversial opinion by an Advisory Committee of Dutch scholars has argued that Putin retains his immunity before the ICC, and while the United States supports the ICC’s investigation in Ukraine, the Pentagon continues to insist that it objects to the Court’s exercise of jurisdiction over non-State party nationals. Many of these objections are based upon the so-called “delegation theory” of the ICC’s jurisdiction fail. In an article forthcoming in the Notre Dame Law Review, “The Conferred Jurisdiction of the International Criminal Court,” I argue that these objections fail as a general matter, and for the same reason, they do not bar the ICC from issuing these specific warrants.
What is the “Delegation Theory”?
The objections to the ICC’s jurisdiction over the nationals of non-States party (or proposing their immunity) without the consent of their State of nationality typically rely upon various iterations of the “delegation theory.” Some argue that the ICC may sometimes hear cases over the nationals of non-States party without their consent, although their heads of state would be immune unless the Security Council has referred the situation. Others contend that the ICC may never hear such cases. In the most comprehensive iteration of the theory (which I dub version 3.0), Michael Newton argues that the ICC’s prescriptive and adjudicative jurisdiction is limited to whatever the State can transfer to it, meaning that a Status of Forces Agreement (“SOFA”) granting the United States jurisdiction over crimes committed by its troops in Afghanistan means that Afghanistan cannot “delegate” jurisdiction over U.S. nationals to the Court. Like the Dutch Advisory Committee opinion referenced above, these authors, and others, posit a “transfer” or delegation of domestic criminal jurisdiction to the ICC, and conclude that the Court’s prescriptive, adjudicative, and enforcement jurisdiction is derivative of whatever the State can give.
Collective Conferral as an Alternative
The delegation doctrine, which posits that the ICC’s jurisdiction is derivative of its member states, presents a paradox, for the ICC was created precisely to hear cases that national courts cannot or will not hear regarding the commission of international crimes. This is one reason that this position, which the United States insisted upon at Rome, was resoundingly rejected during the negotiations. It is also inconsistent with the theory surrounding the establishment of earlier international criminal tribunals. For this reason, it seems clear that while the term “delegation” itself poses no particular conceptual problem, the legal baggage attached to it in the context of the ICC is problematic. States do not “delegate” some of their national jurisdiction to the ICC or other courts, they “confer” jurisdiction upon them through their collective action at the international level. This collective conferral allows them to create entities that are, in the words of Carsten Stahn, “more than the sum of their parts,” or, as U.S. Ambassador for War Crimes Beth Van Schaack has argued, grant what can be described as a form of “pooled” jurisdiction.
As I explain in a much longer article, the theory of “collective conferral” is supported by examining the situation of other international organizations and the practice of States. The idea of “conferral” is also widely referenced in the literature on international organizations. States create other international courts and tribunals including the International Court of Justice (“ICJ”), human rights courts, the International Tribunal for the Law of the Sea, and others because national courts cannot generally hear disputes between sovereign States, or because States wish to grant their citizens access to an additional forum for the protection of human rights enshrined in international law, rights that are not “delegated” to the international body, but exist independently under an international treaty. It is also the basis upon which the ICC’s predecessor courts and tribunals were established, including the IMTs at Nuremberg and Tokyo, and the International Criminal Tribunals for the former Yugoslavia and Rwanda.
The Arrest Warrants
That brings us back to the arrest warrants against Putin and Lvova-Belova. The ICC’s Chambers have uniformly rejected the delegation theory although they sometimes confusingly employ the term “delegation.” They have found the Court’s exercise of jurisdiction in the Palestine, Bangladesh/Myanmar, Sudan, and Afghanistan situations, which presented similar issues of jurisdiction over the nationals of non-States party, and even their heads of State, to be consistent with international law and the Rome Statute. That indicates they will take the same position regarding the arrest warrants at issue. Indeed, the issuance of those warrants by a Pre-Trial Chamber of the Court confirms this view.
The conferral theory explains why the ICC’s Chambers have generally gotten it right. Their judgments, spanning many situations and penned by a significant number of the Court’s judiciary from all continents and legal traditions, are consistent with the decisions by earlier international criminal courts and tribunals. The Court’s Chambers have implicitly, even if not always explicitly, embraced the view that the Court enforces the ius puniendi of the international community, as Kai Ambos and Claus Kreβ have contended, and as I argue in my work. Under this case law, and this conception of the Court’s jurisdiction, Putin is not immune, and neither he nor Lvova-Belova can benefit from their status as non-State party nationals if they have committed some material element of an ICC crime on the territory of a State accepting the jurisdiction of the Court under the ICC’s rulings in the Bangladesh/Myanmar situation.
Although the case of former Sudanese President Omar Al-Bashir involved a head of state charged in a case involving a Security Council referral (unlike the arrest warrant aimed at Russian President Vladimir Putin), the referral mechanism does not change the operation or application of the Statute itself. This was the position taken by the ICC Appeals Chamber in Al-Bashir, by the Special Court for Sierra Leone in the Taylor case, and by the International Criminal Tribunal for the former Yugoslavia in the Milosevic case, and is the scenario envisaged by paragraph 61 of the ICJ’s judgment in the Arrest Warrant Case (Congo v. Belgium).
Politics or Law?
Some have argued that the U.S. objection to jurisdiction over its nationals is not a legal objection, but a statement of U.S. policy. This would be convenient as regards the situation in Ukraine. That said, the critiques launched at the Court regarding the judgment holding that Al-Bashir did not benefit from head of state immunity, and the punishing sanctions leveled by the United States in response to the decision to permit an investigation in Afghanistan were couched in legal terms and startling in their ferocity. Likewise, although the Palestine situation presents a more complex variant of the non-State party national situation, given the controversy about Palestinian statehood, the majority decision finding jurisdiction did not warrant the Israeli criticism that it represented “undiluted antisemitism.” Indeed, there seem to be some situations over which States objecting to ICC jurisdiction over their nationals have no objection when the Court looks at the nationals of other non-States parties. These include the complaint by South Korea regarding attacks on its territory and against its nationals by the Democratic People’s Republic of Korea, the case against Muammar Qaddafi in the Libya situation, and the Ntaganda case, which involved the surrender of a Rwandan national to the ICC for crimes committed on the territory of the Democratic Republic of the Congo, as well as the decisions permitting an investigation in the Bangladesh/Myanmar situation.
The Conferral Theory Avoids Negative Real-World Consequences
Another reason to eschew adoption of the delegation theory, particularly in its strongest forms, is that it would have negative real-world consequences as it could subject the Court to 193 different jurisdictional regimes depending upon the rules embedded in the territorial State. Moreover, as former U.S. Ambassador for War Crimes David Scheffer has noted, this would mean that U.S. (or Russian) forces and intelligence personnel could commit atrocity crimes inside any of the 123 States party to the Rome Statute free from the fear of an ICC arrest warrant. U.S. proponents of limits on the Court’s jurisdiction see the ICC as a sword, threatening U.S. soldiers (and civilian leaders) with harm. States ratifying the Statute, however, view the ICC as a shield over their territory and their inhabitants, protecting them from the commission of ICC crimes.
Conclusion
There are important legal, political, and practical limits to the ICC’s jurisdiction. The conferral theory does not give the Court carte blanche or turn it into a rogue political actor. The ICC is heavily constrained by its Statute and subject to searching oversight by its member States. Moreover, if the ICC’s States Parties believe that the Court has overreached, they can constrain it. They can amend or remove Article 27 of the Statute (relating to immunities) or amend Article 12 to limit the Court’s territorial jurisdiction over non-State party nationals as they did in adopting the Kampala Amendments on aggression. If they do not, while there will be many practical impediments to the execution of the Putin and Lvova-Belova arrest warrants, and those charged will undoubtedly challenge the legality of the warrants should their day in Court arrive, their legal challenges should not, and likely will not, succeed.