The European Union (EU) has long been a supporter of international justice, and all EU member states are parties to the Rome Statute of the International Criminal Court (ICC). When national authorities are unwilling or unable to prosecute war crimes, crimes against humanity, genocide and the crime of aggression, the ICC can act as a court of last resort and investigate and prosecute individuals responsible for those crimes, provided it has jurisdiction. The EU has committed to protect the integrity of the court's treaty and the court's independence, and it has been a critical player in the promotion of the Rome Statute's universality, encouraging countries like Ukraine to join the court.
The ICC has opened 17 investigations and issued 58 publicly known arrest warrants, including against high-profile figures, such as Omar al-Bashir, the former President of Sudan, Joseph Kony, leader of the Ugandan rebel group-the Lord's Resistance Army, and Vladimir Putin, President of Russia. ICC arrest warrants are issued by a three-judge chamber, upon the application of the court's prosecutor. Currently there are 30 individuals publicly known to be sought by the ICC, who remain at large.
Without arrests, there can be no trials before the ICC. The ICC does not conduct trials in absentia, i.e. when the accused is not in the custody of the court. ICC member countries, including all EU member states, are obligated to secure the arrest of individuals found on their territory. But arrest strategies are rarely straightforward, particularly when individuals occupy positions of power or are protected by allies. Past experience demonstrates that such arrests can take years and that lack of enforcement, over time, erodes the perceived effectiveness of the court. It also diverts resources from the court's investigative and prosecutorial activities to enforcement actions.
ICC member countries and other states supporting justice before the court need to be prepared to implement arrest strategies with both short and long-term aims in their domestic and foreign policy. The EU and its member states should step up efforts to cooperate in arrests to ensure that the ICC can deliver on its mandate.
The following document makes six recommendations to the EU and its member states to advance arrest strategies for outstanding ICC arrest warrants. These arrest strategies include complying with the clear legal obligation of EU member states to arrest individuals sought by the ICC if they are on their territory. But they also include using diplomatic, political and economic clout-in other words, political will-to bring about arrests in other countries.
I. Comply with the obligations of EU member states to arrest individuals sought by the ICC
All ICC member countries-that is, all states party to its founding treaty, the Rome Statute-are obligated, under the treaty's Part IX, to cooperate fully with the court, including in the arrest and surrender of individuals sought by the court where those individuals are on their territory. This obligation applies across a state party's territory, which includes airspace. Since all EU member states are members of the ICC, they all have the obligation to arrest any individual sought by the ICC.
Arrest obligations exist regardless of an individual's official status, for example, as a head of state. Article 27 of the Rome Statute very clearly addresses the irrelevance of official capacity, stating that immunities that may attach to the official capacity of a person shall not bar the ICC from exercising jurisdiction. In September, Russian President Vladimir Putin, an ICC fugitive, attended a ceremony in Mongolia, an ICC member country, without being arrested. ICC pre-trial chamber judges ruled that Mongolia violated its treaty obligations when it failed to arrest and surrender Putin and therefore made what is known as a finding of "non-cooperation" and referred the matter to the court's Assembly of State Parties for enforcement.
The court does not have its own police force and relies on states to execute its arrest warrants. ICC member countries are required to ensure their national procedures enable relevant authorities to carry out arrests and surrender to the ICC. The arrests and surrender of suspects can be a politically sensitive and difficult matter, but comprehensive and unambiguous national laws and procedures allowing for the arrest and surrender of suspects to the ICC minimize these difficulties.
EU law reinforces this obligation to arrest. The EU Council issued a Decision in 2011 on the ICC, in which it made a dedicated commitment to support cooperation with the ICC. The Decision also commits to consistency and coherence in cooperation both externally and internally, meaning among EU institutions and member states. The EU Action Plan on the ICC, adopted later the same year to implement the Decision, outlines that "the EU and its member states will undertake consistent action to encourage full cooperation of States with the ICC, including the prompt execution of arrest warrants."
In addition, if an EU member state fails to execute arrest warrants, ICC member countries may have a collective responsibility to address the issue after ICC judges have made what is known as a finding of "non-cooperation" against the state. As in the case of Mongolia, cited above, following such a finding, the court can make a referral to the Assembly of State Parties, which can adopt a resolution on the matter or put political and diplomatic pressure on the non-cooperative state.
II. Uphold the EU's guidelines regarding non-essential contacts with individuals wanted by the ICC
EU member states in their 2011 Action Plan have agreed to avoid "non-essential contacts" with individuals who are fugitives from the ICC, in line with the United Nations Office of Legal Affairs Guidelines on the matter. This refers only to contacts taking place in third countries, outside of the EU; as mentioned, if a fugitive is present within an EU member state, the government of that state has an obligation to arrest.
All EU member states and the EU have agreed on a narrow definition of essential contacts, which includes only those understood as "strictly required for carrying out core diplomatic, consular and other activities," such as UN-mandated activities or other legal obligations. This means that courtesy calls, receptions, photo operations, or attendance at national day celebrations, among others, should be avoided by member states. In practice, if a contact is deemed essential, steps should be taken to inform other member states, EU institutions, and the court of the contact. ICC member countries have made a similar commitment within the framework of the Assembly of States Parties to avoid non-essential contacts, and where contacts are deemed essential, to report those contacts to the court.
Such policies of avoiding "non-essential contacts," provided they are implemented consistently in practice, are important for long-term arrest strategies in that they reaffirm the authority of the court's arrest warrants and can contribute to the political isolation of suspects and, ultimately, surrender. In addition, such policies signal solidarity with victims of alleged crimes and reaffirm states' commitments to justice for victims. This is an example of how successful arrest strategies require ICC member countries, including within the EU, to use all possible diplomatic and political tools to secure cooperation.
III. Leverage public statements to advance arrest strategies
The EU and its member states public support for the court are an essential tool to strengthen the authority of any ICC arrest warrant. The EU and member states should publicly make clear that they will abide by the court's decisions, fulfil their arrest obligations, and avoid non-essential contacts with those sought by the ICC. The adoption of specific Council Conclusions on the International Criminal Court as well as references to the need to implement ICC arrest warrants in Council Conclusions on particular countries or relevant themes, serve to create a consistent record of support for the court's arrest warrants. For example, in June 2023 the EU adopted Council Conclusions on the occasion of the 25th anniversary of the adoption of the Rome Statute to reiterate its principled commitment to the court.
Failure to arrest and uphold the ICC's legitimacy in certain situations, as well as inconsistent reactions to or even the questioning of some of the court's decisions, risk exacerbating a perception that the ICC is politicized and serves specific states' interests. EU institutions should ensure that any publicstatementissued in support of an arrest warrant in one situation is mirrored by similar statements of support in others. Council Conclusions on specific situations can be a good way to ensure alignment of EU countries in their application of international law in sensitive contexts. This consistency is key to counter perceptions of double standards and to strengthen the credibility of the court and international law globally.
IV. Signal strong political and diplomatic support to the ICC to advance long-term arrest strategies
The EU and its member states have several other tools at their disposal, which they should use in a consistent manner to bring about cooperation with ICC arrest warrants.
First, the EU can provide assistance to the court and use its global platforms to popularize arrest obligations among ICC member countries. The EU regularlyfundscourtinitiatives to familiarize ICC member states with their obligations.
Second, the EU has also developed both an official position and a series of guidelines to avoid and respond to "non-cooperation" by third countries with the ICC, including for arrests. This has at least two parts. On the one hand, EU institutions and member states can coordinate a response to deter any country outside the EU from welcoming an ICC fugitive without facing arrest, and to respond robustly when such non-cooperation nonetheless takes place. On the other hand, the EU and its member states can encourage third countries, to avoid "non-essential contact" with ICC suspects, just like for governments within the EU.
Both objectives have been supported by the development of an early warning system within EU institutions and across member states to track the upcoming potential travels of ICC fugitives, and consequent efforts to coordinate a response. The EU focal point for the ICC, ICC focal points within EU member states, and the EU Council's Working Party on Public International Law -ICC subgroup should continue to work together to ensure this system operates efficiently to share information about ICC fugitives' travels and to coordinate an EU response. For this, they can make use of the EU's network of Delegations around the world and their participation in key international meetings, summits and events.
EU policy sets out several steps the EU and its member states can take to avoid non-cooperation and to deter non-essential contacts. This includes preventively using formal diplomatic channels to reach out preventively to a state that may be at risk of non-cooperation or non-essential contacts and issuing public statements calling for cooperation with the court. When non-cooperation on arrests takes place nonetheless, high-level EU and member states' representatives should present a common front of support for the court. While the guidelines remain general, this could mean issuing joint statements in international fora or following up with high-level EU meetings like Foreign Affairs Council, General Affairs Council, or European Council meetings, and coordinating responses with other states and the UN. Diplomatic efforts raise the political cost of breaching ICC obligations, and pressure states to comply with ICC arrest warrants. Whenever a formal finding of non-cooperation by the ICC is referred to the Assembly of States Parties, EU member states should work to coordinate robust responses within the Assembly.
The EU and member states took several useful steps to respond to reports that Putin could visit Mongolia. Ahead of his visit, the president of the Assembly of State Parties sent a letter to Mongolia's Ministry of Foreign Affairs, recalling the obligations of all ICC member countries to arrest and surrender any person subject to an arrest warrant. Some EU member states publicly supported the letter, and the EU, France, Lithuania, and Slovenia issued statements urging Mongolia to respect its obligations before the visit and called out Mongolia's failure to comply after the visit took place. States also bilaterally reached out to the Mongolian authorities ahead of and after the visit.
Many of these measures are the same as those contained in the ICC's Assembly of State Parties procedures and its toolkit on non-cooperation.
While EU guidelines focus on avoiding and responding to non-cooperation by "third countries," the steps outlined above should also be applied to engaging with EU member states at risk of non-cooperation.
V. Support other states in the execution of arrest warrants
EU member states should share experiences and use incentives to encourage other ICC countries to execute arrests or to work together toward that end. The EU and its member states can include support to ICC arrests in judicial assistance and capacity building initiatives, for example, on putting domestic legislation in place to support national implementation of ICC warrants. The EU and its member states can also be operational partners to third countries when it comes to arrest operations and provide support where third countries may face reprisals from other countries over cooperation with the ICC.
Conditionality is another powerful tool for EU states and institutions to reaffirm their principled approach towards cooperation with the ICC. It has proven effective in the past, in the context of the International Criminal Tribunal for the former Yugoslavia's (ICTY) arrest warrants, where the EU used the prospect of Serbia and Croatia's closer ties with the EU to press for full cooperation with the ICTY for the arrest of suspects present in their territory. For instance, in May 2006, the European Union broke off talks with Serbia over the Stabilization and Association Agreement, citing Serbia's failure to ensure ICTY fugitives' arrests and surrender to the Tribunal. The European Commission then emphasized on multiple occasions that full cooperation was a precondition for resuming negotiations. Former ITCY prosecutor Carla Del Ponte stressed that "90% of all indictees brought to justice [before the ICTY] [were] a direct result of conditionality applied by the EU." The EU should work to recreate this incentive for cooperation.
EU member states can also act to support third countries choosing to cooperate with the ICC, for example, by committing to provide aid and assistance, where that aid and assistance is withdrawn by another country in protest of ICC cooperation. This was the case, for example, when the US imposed sanctions on ICC officials in 2020, the EU made it clear that it was ready to stand by the court. In 2002, the EU encouraged and supported third countries to reject US attempts to shield its nationals from ICC jurisdiction by outlining common Conclusions, Position, and Guiding Principles on the ICC against immunities agreements.
VI. Address threats and attacks against the court
Those opposing the court's mandate, including those facing arrest warrants and their allies, have attempted to undermine the court's authority and challenge the legitimacy of its arrest warrants. The success of long-term ICC arrest strategies thus, also requires defending the court against external pressure and coercive measures targeting officials and those cooperating with the court.
ICC officials face arrest warrants issued by the Russian Federation following the ICC's issuance of arrest warrants against Russian President Vladimir Putin and Russia's Federal Commissioner for Children's Rights in March 2023. The court is still addressing the aftermath of a serious cyber-attack, which affected its information technology systems in September 2023. The ICC and its officials have faced threats from Israeli officials and United States legislators following the ICC prosecutor's announcement in May 2024 that he was seeking arrest warrants against senior Israeli officials and Hamas leaders for alleged crimes committed on and after October 7, 2023. In June 2024, the US House of Representatives passed legislation aimed at imposing sanctions against ICC officials, echoing a sanctions regime implemented by the first Trump administration in 2020.
US sanctions against ICC officials could seriously impede the work of the ICC. The effects of the sanctions would not be limited to the individuals targeted but could have wide-reaching consequences. Current service providers to the ICC-from banks to vending machine companies- may assess whether continuing to work with the institution is prudent given the risk of inadvertently violating US sanctions. Sanctions against the ICC as an institution would pose even graver challenges.
Along with political and diplomatic support for the court and its decisions, and direct engagement with officials of states that have or may be considering taking coercive measures against the ICC, one practical step for the EU to protect the court from third country sanctions is through a law called the EU Blocking Statute. This law aims to shield European actors from the effects of such extra-territorial sanctions and ensures that the court's work can continue unaffected. The European Commission can invoke the statute to protect individuals operating in the EU from specific sanctions, but its implementation requires sufficient political support from EU member states. Working with the Commission, EU member states should activate the Blocking Statute as soon as threats of sanctions emerge. In the long term, they should develop and establish a mechanism tailored to defend the integrity and independence of international courts and justice institutions in the EU from extra-territorial sanctions.
It is key that the EU's efforts to protect the court include the institution, its officials as well as those who cooperate with the court, notably from non-governmental organizations and civil society, who may also be at risk of sanctions.
