On March 24, the Constitutional Court of Armenia recognized the obligations enshrined in the Rome Statute on the International Criminal Court (ICC) as consistent with the country's constitution. Aram Orbelyan, an international law specialist and managing partner of the Armenian law firm CONCERN-DIALOGUE, told The Insider that the next step will be to discuss the statute in parliament and adopt a law on ratification. Then the Ministry of Foreign Affairs will have to send the instrument of ratification to the UN Secretary General, and after about 60 days the treaty will enter into force for Armenia.
The ratification of the statute, however, does not mean that Armenia will have to arrest Vladimir Putin in the event of his visit, although the ICC did issue a warrant for his arrest.
“In international law, there is an institution of international immunity and exemption from jurisdiction, which is also enshrined in Armenian legislation and the Armenian Code of Criminal Procedure in particular, and there are obligations for international cooperation in criminal cases – this is the ICC statute and a number of documents that provide for cooperation between states in the international legal sphere: it is the fight against various types of crime, extradition issues, and so on. A legal dilemma arises – on the one hand, international law assumes that the state has immunity, and persons representing the state also enjoy immunity. This status and type of immunity is provided for in a number of international treaties (for example, in the Vienna Convention on Special Missions) and in general international law. It is also confirmed in the practice of the International Court of Justice.
Accordingly, I do not see an international legal possibility to arrest the head of state, the head of a delegation, the head of a diplomatic mission or a consular office, if this is provided for by a consular agreement, the head of a state mission to an international organization that is stationed on the territory of this state, upon any international legal request , whether it be the ICC or a decision of the court of another state.
At the same time, previous experience also shows that the approach that I have indicated is the prevailing one, including in matters related to arrest warrants for heads of state issued by the ICC. There have been several cases where the ICC has issued a warrant for the arrest of a head of state. In all cases, we saw that individuals were arrested after the end of their tenure as head of state. They traveled around the countries participating in the statute and were not arrested. In one case, the head of state traveled to The Hague and was subsequently acquitted. But so far there has not been a case of an incumbent head of state being arrested and handed over to the ICC.
International law is, first of all, interstate law, and initially it was built precisely on organizing a dialogue between states on the principle of equality of states. And for this it is necessary that ambassadors and heads of state and government can travel, meet and discuss. At the same time, the principle applies that an equal over an equal has no power, which removes representatives of states from the jurisdiction of other states.
If a state has signed an international treaty, including a statute, then it has obligations not to take actions that are contrary to the principles and purposes of this international treaty. This is an obligation stemming from the Vienna Convention on the Law of Treaties as well as from general international law. Russia signed the ICC statute, Armenia signed a long time ago. However, these obligations [not to take actions contrary to the principles and purposes of the treaty] can in no way be interpreted as an obligation to fulfill specific obligations provided for by the statute, for example, extradition upon request of a court.”
More of a political issue than a legal one
“Issues of extradition and transfer are even terminologically complex. International law has always used the term "extradition", and in the case of the ICC, the term "transfer" (surrender) has begun to be used, this can be a transfer or extradition. By this, they tried to separate the case of transfer of the ICC from extradition under other instruments of international cooperation.
Returning to the issue of Armenia's obligations and the interpretation of Armenian legislation in this regard, it is very important to look at the decision of the Constitutional Court itself. The text of the decision and justification have not yet been published. Lots of questions about this decision. So far, it is impossible to judge, because there is no text, but in 2004 the Constitutional Court of Armenia already considered the ICC statute inconsistent with certain provisions of the constitution, one of which is related to the possibility of extradition of citizens, the other is related to immunity, and then it was not ratified. Now we need to look at what exactly has changed, maybe they looked at some development in the activities of the International Criminal Court and decided that it can be interpreted in a different way. At the same time, as far as I know, the Constitutional Court of Armenia is the first court in the world, which, having made a decision on inconsistency with the constitution, after the expiration of time once again considers the same issue. The relevant articles of the constitution have not changed, but the approach to constitutionality is changing. The decision of the Constitutional Court will be important if any of the Armenian courts will apply the statute (for example, will decide on the issue of extradition).
Summing up, I do not see the legal possibility of arresting any official who will be on the territory of Armenia, that is, the head of state or government, the head or member of a diplomatic mission or special missions. If someone will be under the jurisdiction of Armenia in a private capacity, for example, will take a vacation, then this is another matter. Putin (and other heads of state, as far as I know) has never been to Armenia on vacation, and I don’t think that he, after he was chairman of the government in 1999, generally vacationed abroad as a private person. Heads of other states also tend to vacation in their own country, due to security protocols and other security-related issues.
Yesterday or today I saw on the news that Putin was invited to the BRICS meeting, but there will be a similar situation. At the same time, there is already a precedent with South Africa, when the persons for whom the ICC warrant was issued were on the territory of South Africa and were not arrested or detained, I assume, because they were in the status of an official. So, I think the whole news hype and the story with the ICC and the arrest warrant lies more in the political plane than in the legal one.”
The ICC issued an arrest warrant for Putin on March 17. Germany soon announced that they would arrest him if he came to her territory. The South African authorities said they "take note" of the information about the arrest warrant for Putin, whose visit to the country for the BRICS summit was expected in August this year. Bloomberg later wrote that South Africa was exploring "all options" to avoid the execution of the ICC warrant.
The Armenian government applied to the Constitutional Court in December, as it hopes to bring Azerbaijan to justice for war crimes with the help of the International Criminal Court.
