By — Shreya Maheshwari

Abstract 

International Humanitarian Law is grounded in the promise that the most serious crimes of concern to the international community as a whole must not go unpunished. However, the failure to enforce an arrest warrant against Vladimir Putin despite extensive evidence of Russia committing crimes against humanity shows gaps in its enforcement. This article argues that the ongoing war crimes investigations in the Russia–Ukraine war expose structural weaknesses in the enforcement of International Humanitarian Law.

Introduction 

The available evidence shows immense suffering caused by the Russian Federation, including targeting civilians and indiscriminate use of explosive weapons, thereby violating international humanitarian law. These persistent violations raise questions about the capacity of International Humanitarian Law to curb violence of international humanitarian law and human rights, especially when committed by global powers, including Russia.

The ICC lacks an internal enforcement mechanism to arrest an individual who is subject to an arrest warrant. The obligation to arrest such individuals rests with member states. This dependence creates barriers as states’ decisions are based on economic and diplomatic considerations. For example, in September 2024, when Vladimir Putin visited Mongolia while being subject to an active ICC arrest warrant, he was not arrested, despite Mongolia being a member state of the ICC. This shows how law enforcement is impacted, especially when powerful countries, including Russia, are involved. This article critically analyses the vacuum in ICC’s enforcement mechanisms, including structural dependence on state cooperation. It further examines how the UNSC veto shield and the aggression jurisdiction gap limit the ICC’s jurisdiction.

The Enforcement Gap: Why ICC Arrest Warrants Fail Against Powerful States

The ICC’s failure to arrest Putin despite an arrest warrant being issued serves as a predictable consequence of how the International Criminal Court is structured to protect powerful nations. The ICC has no internal enforcement mechanism to enable it to arrest individuals itself; it relies on state cooperation for arrest. While Articles 86 and 89 of the Rome Statute make it mandatory for state parties to cooperate with ICC investigation and prosecution of crimes. However, when a major world power is involved, the obligation to cooperate clashes with the economic realities of the world, and many state members cannot cooperate, fearing diplomatic considerations. The Rome Statute lacks a mechanism to ensure state cooperation, thus turning law into a mere symbol as it depends on state discretion. 

This explains why Mongolia, likely due to fear of economic and geopolitical consequences, failed to arrest Putin. Non-cooperation was not limited to Mongolia, but rather many state members showed reluctance to execute arrest warrants despite having a legal obligation, particularly when the concerned person is a sitting head of state. These instances show how the enforcement mechanism of international humanitarian law becomes selective, especially when global powers are involved. Without adequate enforcement mechanisms or UN Security Council support, the warrants issued by the ICC will become mere moral indictments.

Veto Power and Jurisdictional Limits: Structural Barriers to Accountability 

Another important barrier to the enforcement of International Humanitarian Law is Russia’s status as a permanent member of the UN Security Council. This allows Russia to use its veto power to block resolutions issued by the UN Security Council (UNSC) against it. The UNSC is responsible for maintaining peace, and veto powers prevent it from authorising actions against a country, as a single veto from any 5 permanent members can block binding actions. Thus, preventing legal action against Russia for gross human rights violations. Further, the Rome Statute provides two pathways for ICC jurisdiction over aggression, including UN Security Council (UNSC) Referral under Chapter VII of the UN Charter or by state party ratification. However, it seems that both ways are blocked for Ukraine. A security council referral to the ICC is inconceivable in Ukraine’s context, as Russia can exercise its veto to prevent action against it. This risks turning a body designed to protect international peace into a structurally disabled body, as it cannot take action against its own members. Apart from barriers created by veto power, the Kampala Amendments’ design creates another layer of barrier, as now the ICC cannot exercise its jurisdiction over the crime of aggression involving non-party states, including Russia or Ukraine. Thus, Russia’s non ratification Rome Statute serves as immunity against legal actions taken by the ICC. Interestingly, this jurisdiction barrier is not an oversight but rather a deliberate move by P5. This deliberate move resulted in giving the ICC jurisdiction in a narrower range of situations compared to other Rome Statute crimes. This outcome was insisted upon by the Permanent Five (P5) and reluctantly accepted by other States as the price paid for the adoption of the aggression amendments. 

Designing Impunity: Structural Limits of the ICC Framework 

Further, even if countries are willing to prosecute for war crimes, the system itself limits it owing to inbuilt problems within the mechanism itself. The system is based on the principle of complementarity, under which domestic courts get the first chance to prosecute a crime, and the ICC steps only when the domestic courts are unwilling or unable to investigate or prosecute international crimes. However, this creates a gap in the enforcement of International Humanitarian Law, as generally domestic courts can prosecute only lower-level perpetrators, and crimes involving high-ranking Russian officials might exceed a domestic country’s capacity. Similarly, Ukraine demonstrated willingness to prosecute lower level preparators in its domestic courts. However, crimes involving high-ranking Russian officials will exceed its capacity, thus necessitating ICC intervention to ensure true justice. This creates a noticeable impunity gap that exists because of the combined effect of the jurisdictional loopholes in the ICC Statute and the international law principles on immunity. This gap is exploited by mid-level commanders to escape accountability as they are too senior officers to be tried in domestic courts; however, they are not senior enough to be tried by the ICC. Hence, it provides a legal immunity to such officers as no court can prosecute them.

Conclusion 

The above analysis shows how the Russia-Ukraine conflict exposes structural limitations within International Humanitarian Law. It highlights how limitations within the design of law weaken its enforcement. One of the major limitations includes ICC inaction without the cooperation of its member states. However, this cooperation is often subjected to economic and political consequences in the real world for the state. Further, the consequences of this impunity extend beyond Ukraine. As highlighted in the Security Council Report’s 2025 Protection of Civilians forecast, widespread impunity for violations of international humanitarian law is a key driver for increasing targeting of civilians. Additionally, while global legal systems, including international humanitarian law, are becoming stronger on paper with increased safeguards, the realities experienced by civilians remain the same, if not widened. Ukraine is not an exception, but rather it is the clearest illustration of a systemic pattern. While International humanitarian law remains a uniquely powerful tool for mitigating the human cost of armed conflict only if it respects which international humanitarian law remains a uniquely powerful tool for mitigating the human cost of armed conflict. 

About the author

Shreya Maheshwari is a second-year B.COM LLB student at O.P Jindal Global University. She is interested in law and public policy, with a focus on emerging regulatory frameworks in India.

Image Source: https://www.jurist.org/commentary/2022/03/curtis-doebbler-russia-use-of-force-against-ukraine/