Putin is testing the strength of international criminal justice. He came to Mongolia and he should be arrested (but it doesnʼt look like they will dare)

Why is Putin going to Mongolia and how are they reacting to it?

Putinʼs visit to Mongolia is formally connected with the 85th anniversary of the battles on Khalkhin Gol

against Japanese troops in 1939. The press service of the Kremlin states that Putin and the President of Mongolia Ukhnaagiin Khürelsükh will discuss the development of Russian-Mongolian relations and sign a number of bilateral documents. Kremlin spokesman Dmitry Peskov said that there are no fears about Putinʼs arrest in Mongolia.

In the Ministry of Foreign Affairs of Mongolia, Putinʼs visit is timed to coincide with several anniversaries: the 85th anniversary of the Battle of Khalkhin Gol, the 75th anniversary of the establishment of the Ulaanbaatar Railway Association

, and the 5th anniversary of the Agreement on Friendly Relations and Comprehensive Strategic Partnership between Mongolia and the Russian Federation. There is no mention of the Rome Statute

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The Rome Statute is an international treaty that became the basis for the creation of the Intedrnational Criminal Court and defined the list of crimes that the court has the right to investigate: war crimes, crimes against humanity, genocide and crimes of aggression.

signed by Mongolia, which obliges it to arrest Putin.

Instead, Ukraine called on Mongolia to execute a mandatory international arrest warrant and hand Putin over to the International Criminal Court in The Hague, stressing that Putin is a war criminal. The European Union expressed "concern" about Putinʼs visit and emphasized Mongoliaʼs obligations as a member of the Rome Statute of ICC.

The spokesman of the International Criminal Court Fadi el Abdallah, in a comment to the BBC, emphasized that Mongolian officials are obliged to comply with the Rome Statute, without specifying that the arrest should take place. He referred to Chapter IX of the Rome Statute, which states that under certain circumstances countries may not comply with an arrest warrant — if doing so would violate "treaty obligations" with another state or the "diplomatic immunity of an individual." As a lawyer at the Regional Center for Human Rights (RCHR) Kateryna Rashevska noted, Article 98 of the statute refers to a request not to arrest a person, but to hand him over to court. However, even in such cases, the state must consult with ICC, and the court must do everything to obtain the support of that state.

If Mongolia refuses to cooperate, the ICC judges can draw a conclusion and notify the Assembly of States Parties to the Rome Statute. The assembly will decide what to do next.

The International Criminal Court did not report the request for consultations from Mongolia or its own actions regarding Putinʼs visit.

Why should Putin be arrested?

In March 2023, the International Criminal Court issued an arrest warrant for Vladimir Putin and the Commissioner for Childrenʼs Rights in the Russian Federation Maria Lvova-Belova. They are suspected of illegally deporting Ukrainian children from the occupied territories of Ukraine to Russia, which is a war crime. Putin and Lvova-Belova should be arrested as official suspects in countries that have ratified the Rome Statute. De jure, 123 countries are closed to them, including Mongolia, which ratified it in 2002.

How the International Criminal Court works

The International Criminal Court became operational in 2002 in the city of The Hague (the Netherlands), it was founded on the Rome Statute, which determines the procedure of the court, as well as what crimes it will consider:

• genocide
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  It is also about murders, for example, ethnic cleansing or murders on national grounds. Reducing the birth rate and transferring children from one group to another is also genocide.
  — complete or partial destruction of a national or ethnic group;
• crimes against humanity — rape, torture, deportation;
• war crimes — killing of civilians, destruction of civilian property, attacks on doctors, etc.;
• crimes of aggression (since 2010) — invasion of or attack on an independent country, occupation of some of its territory, etc.

Trials at the International Criminal Court take a long time — the crimes under its jurisdiction do not have a statute of limitations, and it is not always possible to immediately find criminals and physically place them on the dock.

The International Criminal Court issued a warrant for Putinʼs arrest after the Pre-Trial Chamber (itʼs like an investigative judge, but ICC has three judges in the Chamber) examined the evidence presented by the prosecutor and approved the decision. The document states that Putin and Maria Lvova-Belova are personally responsible for the war crime of deportation of Ukrainian children, and the court has reason to believe so.

The chief prosecutor of the International Criminal Court Karim Khan

said that his office had confirmed cases of deportation of at least hundreds of children removed from orphanages and boarding schools. Many of them were given for adoption in the Russian Federation. According to the prosecutors, this shows that they wanted to take the children out of Ukraine forever.

The fact that Putin is president does not protect him from criminal prosecution. If he is detained, the court will choose a preventive measure and continue the investigation. 123 countries must submit it to the court.

Putin has already traveled abroad. Why is he not in court?

After issuing the warrant, Putin traveled only to Belarus, Kyrgyzstan, China, the DPRK, the United Arab Emirates, Saudi Arabia, Vietnam, and Azerbaijan. These countries have not ratified the Rome Statute, so they are not obliged to comply with the ICCʼs order.

Last year, Putin was supposed to go to the South African Republic for the BRICS

summit. At that time, South Africa, which ratified the Rome Statute, considered options for not executing the warrant for Putinʼs arrest. The countryʼs president Cyril Ramaphosa said that Putinʼs arrest at the summit would mean a declaration of war against Russia. However, the government of South Africa did apply to the court for a warrant for Putinʼs arrest in case he arrives in the country. However, this happened after the Kremlin decided to send its Foreign Minister Sergey Lavrov to the summit instead of Putin. South Africa worked for a long time to persuade the head of the Russian Federation not to go, in particular, offered to hold the summit online. Everything was done so as not to be faced with a dilemma — to arrest or not to arrest.

The precedent of South Africa

In the past, South Africa violated its obligations under the Rome Statute when it failed to arrest former Sudanese President Omar al-Bashir

, who has been charged with genocide and crimes against humanity, during his visit to the country to attend an African Union summit in 2015. South Africa explained this by the fact that Bashir enjoyed diplomatic immunity as president, although in fact the Rome Statute does not provide immunity for current and former heads of state in the case of serious international crimes.

South Africaʼs Supreme Court issued an interim order barring Bashir from leaving the country until his arrest is resolved. However, the president of Sudan was able to leave South Africa when the court had not yet started considering the case.

Two years later, the Pre-Trial Chamber of the International Criminal Court concluded that South Africa should have executed the arrest warrant for the then president of Sudan, and referred the case to the UN Security Council and the Assembly of States Parties to the Rome Statute. This is standard practice when a participating country does not comply with an arrest warrant.

South Africa remained a member of ICC, no sanctions were imposed against it, and no decision was taken by the UN Security Council.