ICC and its arrest warrants: 21 of 59 ‘wanted’ arrested, 11 convicted; 30 still at large

After Israeli Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant, the International Criminal Court (ICC) appears to be in the process of issuing an arrest warrant for Myanmar's military ruler Min Aung Hlaing .

Previously, the ICC had issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes in Ukraine in the war he started.

However, the chances of ICC securing the custody of Netanyahu, Gallant, Hlaing, and Putin are bleak as Israel, Russia, and Myanmar are not members of ICC. Moreover, their closest partners are also not members of the ICC and are therefore not bound to arrest them.

Even nations that are members of the ICC have frequently defied arrest warrants.

There are a number of reasons that make ICC’s warrants ineffective, ranging from the fact that the court has no enforcement mechanism of its own to geopolitical and ideological factors that sway the behaviour of member-states.

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59 warrants, 29 detentions — ICC’s poor track record

Even though the warrant for Netanyahu's arrest has made most headlines, he is far from being the only leader wanted by ICC.

Just last year, the ICC issued an arrest warrant for Putin over his war on Ukraine for alleged war crimes against Ukrainian children.

Issuing the warrant, the ICC said there were reasonable grounds to believe that Putin was responsible for the war crime of unlawful deportation of Ukrainian children and unlawful transfer of children from Russia-occupied Ukrainian territory to Russia.

Overall, the ICC has issued 59 arrest warrants over the years in 32 cases that it has heard, according to information on its website.

However, only 21 people have been detained and 30 remain at large.

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Moreover, charges against seven persons were dropped due to their deaths, including Hamas leaders Yahya Sinwar and Ismail Haniyeh.

Overall, there have been just 11 convictions while four persons have also been acquitted.

Is ICC toothless tiger?

Outside of Europe, most of the major powers of the world are not member-states of the ICC, such as the United States, China, Russia, and India.

As some of the world’s most powerful nations are not ICC members, the potency of the institution is limited at the onset.

Moreover, even ICC’s member-states have frequently defied warrants and have invented rationales to not arrest wanted persons.

Former Sudanese dictator Omar al-Bashir has had an arrest warrant by the ICC since 2009, but he continues to remain at large. By 2018, Al-Bashir had made around 150 foreign visits, including to ICC member-states South Africa, Jordan, and Uganda, but none of the countries arrested him.

Similarly, Putin has travelled to several countries with impunity since warrant was issued against him, including to ICC member-state Mongolia , but no action was taken against him.

There is also the issue of duplicity by member-states as they have lent support to warrants against some leaders while ignoring warrants against others.

For example, even though South Africa welcomed the warrant against Netanyahu of Israel, it has sought an exception for Russia’s Putin. Similarly, while France urged Mongolia to arrest Putin, it has said that Netanyahu could be immune from arrest in France as Israel is not a member-state of the ICC.

As per the French rationale, Putin should also be immune from arrest in Mongolia as Russia is also not a member-state of ICC. Similarly, if South Africa welcomes the warrant against Netanyahu, it should also not seek an exception for Putin. However, geopolitical compulsions and ideological affinities mean that nations favour warrants against some leaders while ignoring warrants against others.

Moreover, at times, nations have also defied ICC warrants with the false rationale that heads of state have immunity from arrest. This exception was raised by Jordan when Sudanese dictator Al-Bashir visited the country for a multilateral meeting. The ICC as well as a host of jurists have clarified repeatedly over the years that heads of state do not have any immunity from arrest warrants.

Such a state of affairs related to the ICC, along with the fact that the ICC does not have any police of its own, leads to the question whether the ICC is a toothless tiger.