Much Ado About Putin: Armenia’s Constitutional Door Opens to Join the ICC

On March 24, 2023, the Constitutional Court of Armenia announced a decision declaring the obligations enshrined in the Rome Statute of the International Criminal Court (“Rome Statute” and “ICC”, respectively) to be constitutional. Armenia signed the ICC’s founding treaty on October 1, 1999, but has not yet ratified it due in part to a prior decision of the Constitutional Court in 2004 deeming the Rome Statute to be incompatible with the Armenian Constitution of 1995. The Armenian Constitution having been amended twice since then, the Constitutional Court’s latest decision now gives Armenia the green light, should it so wish, to ratify the Rome Statute and become a full-fledged member of the ICC.

The decision comes just one week after the ICC issued arrest warrants for Vladimir Vladimirovich Putin, President of the Russian Federation, and Maria Alekseyevna Lvova-Belova, Children’s Rights Commissioner for the President of the Russian Federation. The warrants allege the war crimes of unlawful deportation and transfer of children from Ukraine to Russia. A second set of charges is eventually expected regarding Russia’s attacks on civilian infrastructure in Ukraine which are not considered legitimate military targets.

The ICC’s move is nothing short of a very big deal. It is the first time that international charges have been brought since the start of Russia’s war, and the very first time such charges have ever been brought against the leader of a permanent member of the UN Security Council. Russia has wholly rejected the arrest warrants as legally null and void given that it is not a member of the ICC. In fact, neither is Ukraine, although Ukraine has twice accepted the ICC’s ad hoc jurisdiction under Article 12(3) of the Rome Statute for crimes committed on its territory since November 21, 2013 (see here and here), and more than 40 member States have referred the “Situation in Ukraine” to the ICC. 

The ICC may pursue nationals of non-member States who commit international crimes (genocide, crimes against humanity, and war crimes) on territory where it has jurisdiction. This is important for Armenia, which started to take serious steps towards ratifying the Rome Statute as well as seeking the Court’s jurisdiction under Article 12(3) since Azerbaijan’s September 2022 invasion of Armenia proper. As previously argued, this would be the most viable way to have real accountability (and deterrence) for the war crimes that were (and may in the future be) committed by Azerbaijanis (or anyone for that matter) on Armenian territory. 

Now with the constitutional impediment out of the way, all that’s needed for Armenia to join the ICC is political will. But in the wake of the arrest warrants, serious debate has ensued as to the desirability and consequences for Armenia to follow through with ratifying the Rome Statute. International criminal law lecturer Gurgen Petrossian opines that, “if we join the ICC, Russia will try to punish us in every possible way”, and “in case of Putin’s visit, Armenia will have to arrest him”. Human rights activist Artur Sakunts posits that Armenia should not deviate from ratification and that “[f]acilitating Putin’s arrest is in the interest of Armenia.” 

The Rome Statute does impose a general obligation on member States to cooperate fully with the ICC (see Article 86), including with respect to requests for the arrest and surrender of persons (see Articles 87, 89-92). However, the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity” (see Article 98(1)). Sitting Heads of State such as Putin absolutely enjoy immunity from foreign prosecution under customary international law, which the International Court of Justice has (somewhat controversially) determined extends to those accused of committing war crimes or crimes against humanity (see Arrest Warrant Case (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002, paragraph 58). 

The Rome Statute nevertheless provides that such immunity or official capacity “shall in no case exempt a person from criminal responsibility” nor shall it “bar the Court from exercising its jurisdiction over such a person” (Article 27). In 2019, the ICC Appeals Chamber also held (even more controversially) that the Kingdom of Jordan had no ground to refuse to execute a request by the ICC for the arrest and surrender of the then President of Sudan, a non-member State (see The Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, paragraph 117). A closer reading of the ICC’s judgment suggests that member States are not barred from surrendering the Head of a non-party State to the ICC, only when the arrest warrant emerges from a situation referred by the UN Security Council. 

As such, while personal immunity of sitting Heads of State does not serve as a bar to prosecution by the ICC, it can in some instances arguably prevent member States from enforcing or executing the ICC’s arrest warrants. How ICC member States will interpret any obligation to arrest Putin remains to be seen: Germany says it would go through with it; Hungary says it would not. For now, the seeming unlikelihood that the warrants will be executed has caused them to be dubbed as largely “symbolic”. But symbols matter, and this one sends a clear signal to despots such as President Aliyev who think they’re untouchable that they could be next. Research shows that investigations into war crimes and human rights violations, even if they do not lead to actual convictions or punishments for those accused, can have an important deterrent effect. 

That said, joining the ICC so soon after the warrants’ issuance would certainly be a bold move for Armenia vis-à-vis Russia, whose recent expressions of discontent with the ICC have ranged from describing the warrants as toilet paper to threatening to use hypersonic missiles and even opening its own case against the ICC’s prosecutor and judges. Then again, the more Russia becomes a pariah State, the less defensible it becomes for Armenia to continue to align with it, especially in the light of its increasing abandonment of obligations towards Armenia under the CSTO. And if Prime Minister Pashinyan’s response to mounting criticism about Armenia’s weak stance on Russia’s aggression—namely that “[o]ur country is doing everything to position itself on international platforms as a responsible member of the international community”—is to hold water, then Armenia should no longer delay in becoming the ICC’s 124th member State.

It is, after all, Azerbaijan’s aggression which concerns Armenia most. The way to counter this cannot be to cower and effectively side with another hostile outsider, but rather to ratify the Rome Statute so as to be able to play an influential role in the selection of the ICC’s judges and prosecutor and send Armenian personnel to work in the ICC’s various organs. By becoming a member State of the ICC and not solely accepting ad hoc jurisdiction under Article 12(3) of the Rome Statute, Armenia would secure its seat at a crucial international table and have a say in the functioning of the Court’s life. As a full member State, Armenia would moreover have standing to challenge any possible decision by the ICC prosecutor not to proceed with investigating a referral of the situation with Azerbaijan. Either way, there can be little if any doubt that the ICC would be a valuable addition to Armenia’s international legal toolbox.

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