ICC OF ONE CRYING IN STEPPE: FINDING OVER MONGOLIA

Introduction. The article provides a study of international law aspects of senior state officials' immunity from ICC criminal jurisdiction in light of the Court's recent politically biased finding of 24 October 2024 on Mongolia's failure to fulfill its obligation to cooperate with the ICC by non-execution of the request for the Russian President arrest and surrender. The author examines the ICC's ruling for its consistency with customary international law as reflected in the ILC's June 2022 Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, as well as the provisions of Part 9 of the Rome Statute.
Materials and methods. In conducting the research, the author employed the following general scientific and special methods: synthesis, analysis, induction, deduction, dialectical, formal-legal, system-structural, comparative-legal methods, extrapolation and analogy.
Research results. The author concludes that the ICC's approach is flawed in its contention that Mongolia, at the request of the ICC, was obliged to arrest a Head of State not party to the Rome Statute. The Court's approach is at odds both with customary international law, according to which a Head of State has immunity ratione personae from any foreign criminal jurisdiction, and with the provisions of art. 98 (1) of the Rome Statute, which bars the Court from requesting States parties to the Statute to arrest and surrender an immune official of a State not party to the Statute, without first obtaining voluntary waiver of immunity from that third State. Moreover, the ICC decision, replete with references to the interests of humanity, reveals the Court's lack of actual and legal authority to enforce the ultra vires request for arrest and surrender issued against the Head of State not party to the Rome Statute.
Discussion and Conclusion. In conclusion, the author proposes an approach according to which the feasibility of issuing and executing a request for the arrest and surrender of a head of state not party to the Rome Statute depends on the involvement of the UN Security Council in referring the situation to the ICC. This approach is fully consistent with the conclusion of the International Legal Council under the Russian Ministry of Foreign Affairs “Problems of legitimacy of the International Criminal Court”.

1. Bogush G.I., 2009. Prokuror protiv Al'-Bashira: order na arest i immunitet dejstvujushhego glavy gosudarstva [Prosecutor v. Al-Bashir: Arrest Warrant and Immunity of the Incumbent Head of State]. Al'manah mezhdunarodnogo prava [International Law Almanac]. № 1. S. 59-68.

2. Problemy pravomernosti dejatel'nosti Mezhdunarodnogo ugolovnogo suda: Zakljuchenie Mezhdunarodno-pravovogo soveta pri MID Rossii [Problems of Legality of the International Criminal Court: Conclusion of the International Legal Council under the Russian Ministry of Foreign Affairs]. 2024. Moscow: Diplomatic Academy of the Ministry of Foreign Affairs of Russia. 64 s.

3. Tatarinov M.K., Kasperovich A.M., 2024. Immunitety dolzhnostnyh lic gosudarstv ot inostrannoj ugolovnoj jurisdikcii: obzor pozicij gosudarstv [Immunities of state officials from foreign criminal jurisdiction: review of the states’ positions]. Mezhdunarodnoe ugolovnoe pravo i mezhdunarodnaja justicija [International Criminal Law and International Justice]. № 01. S. 32-36.

4. Akande D., 2018. The Immunity of Heads of States of Nonparties in the Early Years of the ICC. AJIL Unbound. P. 172-176.

5. Cassese A., Gaeta P., 2013. Cassese's International Criminal Law, 3rd edition. Oxford University Press. Oxford. 472 p.

6. Fitzmaurice M., 2002. Third Parties and the Law of Treaties. Max Planck Yearbook of United Nations Law. Vol. VI. P. 37-137.