Is There Anything New Under the Sun After All? ICC Arrest Warrants at the Crossroads of PIL and EU Law

ICC and Hungary – Do We Know Each Other?

It is widely known that all EU member states are parties to the Statute of the International Criminal Court (ICC). The European Union and its member states have been among the institution’s most significant proponents since its creation. Among other things, the EU and the ICC pledged to cooperate in an international treaty. However, it is perhaps less well-known that Hungary, despite ratifying the Statute as early as the end of 2001 (during Viktor Orbán’s first cabinet), has not yet incorporated it into its legal system by promulgating it as an Act of Parliament.

Orbán’s first government (1998-2002) likely did not have sufficient time to prepare the promulgating legislation due to the proximity of the 2002 spring parliamentary elections. However, the newly elected left-wing government, which emerged victorious in the elections, continued the process of implementation and submitted the bill of promulgation to the Parliament in 2003. Nevertheless, it has not been passed by the legislature to this day, regardless of which parties held the majority there.

Among Hungarian international legal scholars, rumour has it since almost the beginning that some politicians, as well as certain constitutional lawyers, consider the potential promulgation of the ICC Statute unconstitutional. More recently, the Prime Minister’s Press Office also referred in a statement to constitutional concerns as the reason for the lack of promulgation. These concerns are likely related, (though never officially confirmed) to the constitutional status of the President of the Republic. As according to Article 12 of the Fundamental Law of Hungary: ‘The person of the President of the Republic shall be inviolable.’ It is also true at the same time, that the ICC Statute has not ever been tested against this provision of the constitution in the Hungarian Constitutional Court.

PIL and Constitution – A Legal Evergreen

Whatever the actual constitutional situation may be, Hungary remains a party to the ICC Statute. However, under the Fundamental Law, the relationship between Hungarian domestic and international law is moderately dualistic. Consequently, due to the lack of promulgation, Hungarian authorities would not be able to fulfil ICC requests, or at least, doing so would encounter significant domestic legal obstacles. This, in turn, could result in Hungary’s international legal responsibility. In such a scenario, not only would the ICC Statute be violated, but also the principle of pacta sunt servanda. Moreover, the lack of promulgation in itself constitutes a breach of international law, particularly Article II of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968 (Promulgated in Hungary by 1971. évi 1. sz. tvr.), which states: ‘The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in Article II of this Convention.’ In addition to violating international law, the failure to promulgate also breaches the Fundamental Law of Hungary, as according to Article Q(2): ‘In order to comply with its obligations under international law, Hungary shall ensure that Hungarian law is in harmony with international law.’ Despite this unlawful situation on ‘two counts’, the key point is that, in practice, Hungarian authorities would most likely be unable to comply with the ICC’s requests, as the Statute is ‘invisible’ to Hungarian authorities.

Partly for this reason, or so the press suggests, Viktor Orbán, who is now leading his fifth government in a row, albeit with an interruption between 2002 and 2010, reportedly instructed three of his ministers this summer to examine how Hungary could withdraw from the Rome Statute and what the potential consequences of such a move might be. For now, Hungary remains a party to the Statute, and it is unlikely that any further steps will be taken in this regard, at least during its presidency of the EU Council.

However, a recent development has drawn attention: in a radio interview, Viktor Orbán commented on the warrants of arrest issued by the ICC’s Pre-Trial Chamber I against Benjamin Netanyahu and Yoav Gallant, describing them as ‘defamation of international law.’ He added, ‘[W]e have to confront this decision, and so later today I will invite the Prime Minister of Israel, Mr. Netanyahu, to visit Hungary.’

In the following, however, I do not intend to focus on the warrants of arrest mentioned, nor do I wish to address their content. Instead, I will consider the hypothetical scenario of what might happen if an EU member state failed to comply with its obligation under the ICC Statute to execute any warrant of arrest issued by the ICC.

PIL and EU Law – Still A Legal Greenhorn?

Beyond the fact that such a situation might constitute a violation of international law, it is also widely known that, unfortunately, precedents already exist that could be cited in such a case. The options are rather limited in this sense. Firstly, under Article 87(7) of the Statute, the Court may refer the matter to the Assembly of States Parties (ASP). If the case was referred to the ICC by the Security Council, this may also include referring the issue back to the Security Council. Besides, according to Article 119(2) of the Statute, a dispute between two or more parties concerning its interpretation or application that cannot be solved through negotiations within three months of their initiation shall be referred to the ASP, which may then try to resolve the issue on its own or issue recommendations on it. This might include the referral of the issue to the ICJ. Although this provision has never been invoked so far, it cannot be ruled out that this will always remain the case, especially in situations of extreme interest.

Moreover, in previous cases, it has always been non-EU State Parties that have refused to cooperate with the ICC. Although the European Union itself is not a party to the ICC Statute, only its Member States are, the EU has its own rules and framework for helping the ICC to fulfil its tasks.

First of all, Article 3(3) of Council Decision 2003/335/JHA on the investigation and prosecution of genocide, crimes against humanity, and war crimes puts ‘Insofar as the law enforcement authorities in a Member State become aware that a person suspected of crimes as referred to in Article 1 is in another Member State, they shall inform the competent authorities in the latter Member State of their suspicions and the basis thereof. Such information shall be provided in accordance with relevant international agreements and national law.’ Article 1 of this provision refers to war crimes, crimes against humanity, and genocide as they are regulated by the relevant provisions of the Statute of ICC. 

Since the ICC Statute is not ‘only’ an international treaty, but also part of the municipal law of EU member states (except Hungary), a warrant of arrest issued by the ICC can be legally equated to one issued by the authorities of any EU member state. At least in theory. If this assumption holds, it is likely, though alternative interpretations of the relevant rules could also be possible, that a warrant of arrest issued by the ICC could serve as a basis for issuing a European Arrest Warrant (EAW), which would then have to be executed in all EU member states.

Alternatively, Article 16(3) of the European Convention on Extradition of 1957 could also provide a legal basis for action via Interpol, as other Hungarian international legal scholars have already suggested this option before. If an EAW cannot be issued based on an ICC warrant of arrest, such a warrant could still qualify under Article 26(1) Regulation (EU) 2018/1862 as an alert for arrest for extradition purposes and could be entered into the Schengen Information System (SIS II) as such. Under Article 31 of the same Regulation, such an alert would carry the same legal weight as an EAW.

Pros and Cons

Frankly, the close connection between an ICC warrant of arrest and an EAW is weakened by the fact that if a member state receives both for the same individual, it must prioritize the ICC request (Article 16(4) of Council Framework Decision 2002/584/JHA). Should an EAW be issued based on an ICC warrant of arrest, the member state concerned could still invoke the personal immunity of certain high-ranking officials under customary international law (if the person in question qualifies as such) or even refer to Article 98 of the ICC Statute in the case of non-party nationals when denying the request.

However, unlike perhaps the ICJ (for heads of government, see para 46. of Judgment in Armed Activities on the Territory of the Congo), the ICC’s practice regarding immunity does not look to support the validity of such an argument. Within the EU framework, it is conceivable that the issue would ultimately need to be decided by the Court of Justice of the European Union (CJEU), as the CJEU’s jurisprudence recognizes customary international law (See the judgment in Racke and subsequent practice) as part of the EU’s legal order.