Tajikistan’s failure to arrest Vladimir Putin undermines the fight against impunity

A clear breach of Rome Statute obligations 

Tajikistan joined the International Criminal Court in 1998, agreeing to abide by the Court’s founding treaty, the Rome Statute, which requires all States Parties to fully cooperate with the Court’s investigations and prosecutions efforts. Article 86 of the Rome Statute obliges States Parties to “cooperate fully with the Court in its investigation and prosecution of crimes,” while Article 89 requires States to comply with the Court’s requests for arrest and surrender. 

On 17 March 2023, ICC Pre-Trial Chamber II issued an arrest warrant for Vladimir Vladimirovich Putin, President of the Russian Federation, in the context of the situation in Ukraine. He is alleged to bear individual criminal responsibility for the war crimes of unlawful deportation and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation. 

Possible consequences for non-cooperation 

For failing to comply with its obligation to arrest an ICC suspect, Tajikistan may now face a judicial finding of non-cooperation by the ICC. Under Article 87(7) of the Rome Statute, when a State Party fails to comply with a cooperation request, the Court "the Court may make a finding to that effect and refer the matter to the Assembly of States Parties (ASP)," the ICC’s governing body. 

This procedure was recently applied in the case of Mongolia, which was referred by ICC Pre-Trial Chamber II to the Assembly of States Parties. The Chamber found that, by failing to arrest Mr Putin while he was on its territory and surrender him to the Court, Mongolia has failed to comply with the Court’s request to cooperate in this regard, contrary to the provisions of the Rome Statute, thereby preventing the Court from exercising its functions and powers. The Chamber reaffirmed that personal immunity, including that of Heads of State, does not bar cooperation with the ICC, and that no waiver is required. States Parties are duty-bound to arrest and surrender individuals subject to ICC warrants regardless of their official position or nationality. 

Justice must prevail over political convenience 

As recognised in the preamble to the Rome Statute, the crimes under the Court’s jurisdiction “deeply shock the conscience of humanity” and “threaten the peace, security and well-being of the world.” By ratifying the Statute, States Parties pledged to ensure that those responsible for such crimes are brought to justice and not allowed safe haven. 

In a letter addressed to the Minister of Foreign Affairs of Tajikistan ahead of Mr Putin’s visit, the President of the Assembly of States Parties, Päivi Kautokoranta, wrote: 

“The Court’s ability to fulfil its mandate is dependent on States meeting their cooperation obligations, in particular when it concerns the arrest and surrender of individuals subject to arrest warrants. As recognised in the preamble to the Rome Statute, the crimes under the Court’s jurisdiction deeply shock the conscience of humanity and threaten the peace, security, and well-being of the world. It is essential that all States Parties meet this duty and not allow Mr Putin to enter their territory without meeting their obligation to arrest and surrender him to the International Criminal Court.” 

The European Commission’s Lead Spokesperson for Foreign Affairs and Security Policy stated: 

“Russia’s President [was] in Tajikistan, despite the International Criminal Court’s arrest warrant issued against him. Tajikistan is a State Party to the Rome Statute of the ICC and failed to comply with its obligations under the Statute to execute the arrest warrant. The European Union expresses its strongest support for efforts to ensure full accountability for all crimes under international law and victims’ rights to justice, reparation and guarantees of non-repetition. The EU continues to support the investigations by the ICC Prosecutor in Ukraine and calls for cooperation by all States.” 

No ‘Business as Usual’ with ICC fugitives   

The Coalition reiterates its call for all States Parties to the Rome Statute to avoid any contact with ICC suspects. Non-essential contact with individuals subject to outstanding ICC warrants contravenes States’ obligations under the Rome Statute but also risks lending legitimacy to those who should instead be in ICC custody. 

Avoiding such contact is not only a matter of legal obligation but is also an essential strategy to ensure the arrest of all alleged perpetrators, and uphold the integrity of international justice for all situations. 

There can be no ‘business as usual’ with those seeking to evade accountability. 

A call to restore credibility and uphold justice 

As the Court faces escalating attacks and threats to its independence, it is imperative for States Parties to the Rome Statute to step up in their efforts to support the Court, including by cooperating with the Court in arresting and surrendering all ICC suspects. 

The Coalition for the ICC urges Tajikistan and all States Parties to reaffirm their support for the ICC, comply fully with their obligations under international law, and stand with victims and survivors of Rome Statute crimes by ensuring that those wanted by the Court are brought to justice.