If Putin came to Hungary, it would be a violation of international law not to arrest him
March 27. 2023. – 05:22 PM
It is not entirely true that Hungary could ignore an arrest warrant issued by the International Criminal Court (ICC) if Vladimir Putin were to enter its territory, as this would be considered a breach of an international obligation it has undertaken. There is no doubt, however, that 22 years after the signing and parliamentary ratification of the Rome Statute recognising the ICC's jurisdiction, there has been a failure to promulgate the treaty across governments. According to international lawyer Tamás Hoffmann, the arrest warrant should be enforced even though the situation is unique in the EU and difficult to explain. However, the government's approach is as ambiguous as it almost always is in cases involving the war in Ukraine.
Although responding to a question from Telex at the government briefing, Gergely Gulyás, Minister of the Prime Minister's Office said that if Russian President Vladimir Putin were to visit Hungary, he would not be arrested on Hungarian territory despite the arrest warrant issued by the International Criminal Court (ICC), the Minister's answer was not accurate. Tamás Hoffmann, a researcher at the Institute of Law of the Centre for Social Science Research and a lecturer at Corvinus University, said
Hungary could only ignore the ICC ruling in violation of its international obligations.
"Hungary is a party to the Rome Statute, the arrest warrant is valid on its territory, so Hungarian law enforcement authorities would be obliged to execute it," the international lawyer said. He said that the fact that Hungary has signed and ratified the Rome Statute, which allowed the ICC to come into being, already indicates that Hungary, as a party to the ICC, is taking on its obligations.
"Failure to promulgate it would not prevent the execution of the arrest warrant in a specific case."
The ICC was established in 2002 under the Rome Statute of 1998. It is accountable only to countries that have ratified the document, of which there are currently 123. Russia, the United States and China have not ratified the Statute. However, we have written more here on why the arrest warrant issued against Putin designating the deportation of civilians, including children, and forcing them into Russia as a crime can not be regarded as purely symbolic.
On the third day of the war launched by Russia against Ukraine, Tamás Hoffmann also gave an interview to Telex on the legal assessment of the war, and his views were confirmed by the content of the ICC arrest warrant issued last week.
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It would only be a question of intention
Gulyás argued that the statute has not been promulgated because it would be unconstitutional, and the Constitutional Court would immediately rule accordingly. The basis of the controversy is indeed a sensitive area:
- Under the Rome Statute and according to ICC resolutions, immunity of heads of state – which is not the same as diplomatic immunity, but a higher degree – does not provide protection against arrest warrants.
- The Constitution in force during the first Fidesz government and the Fundamental Law adopted by the Fidesz majority in 2010 clearly provide for the immunity of the President of the Republic – which is contrary to the Rome Statute.
Hoffmann acknowledged that "in its current state the Rome Statute is not compatible with the Fundamental Law, but Hungary adopted it 22 years ago, so the Hungarian legislator has a duty to develop a regulation that is in line with the provisions of the Rome Statute."
It would indeed require amending the part of the Fundamental Law on the immunity of the President of the Republic – this would not be a problem for Fidesz in any case with a fourth two-thirds majority, and there is a parliamentary consensus on the Rome Statute anyway, and only the far-right Mi Hazánk would oppose it, the Corvinus University lecturer said. In his opinion, the issue of immunity of heads of state is a false excuse anyway, as it is unlikely that the ICC would ever issue an arrest warrant against a Hungarian head of state.
There have already been infringements without sanctions
As incumbent leaders, only Libyan dictator Muammar Gaddafi and Omar el-Bashir, who ruled Sudan for 30 years, have been the subject of ICC arrest warrants. The former died on the run after losing power, while the latter was brought before the tribunal, but only 12 years after the arrest warrant was issued, following a change of power in the African country. While he was president, the arrest warrant was not enforced, although he was in South Africa in 2017. The host state also invoked head-of-state immunity, but the argument
was not accepted by the ICC, stating that South Africa had breached its legal obligation by not arresting him.
Perhaps this is why South Africa has now asked for a legal position on what it should do. The BRICS summit is due to take place in August in South Africa with the leaders of Brazil, Russia, India, China and South Africa, and Russian President Vladimir Putin is among the guests. But South Africa is a member of the International Criminal Court (ICC) and, although it has officially taken a neutral stance on the Russia-Ukraine war, foreign sources who spoke to Bloomberg anonymously said it was unlikely that any foreign leaders would be arrested.
According to those arguing for immunity, the head of state embodies the state, and a case against him is the equivalent of a case against the state, and the sovereignty of the state protects the head of state. "There is indeed considerable debate as to whether the development of international law has gone beyond head-of-state immunity, but the ICC's position is clearly that it has," Hoffmann said.
It is true that the ICC cannot do anything beyond declaring a breach of duty. It does not have its own penitentiary, and convicted persons are held by states in their own prisons. "The international court system is based on international cooperation. The basic concept is that states assume the obligations of the statute," said the international lawyer.
Hungary is left alone again
Beyond the above, there is not much that needs to be changed in the Hungarian legal system, as it is precisely because of the Rome Statute that new crimes have already been introduced, such as crimes against humanity. The major part of the harmonisation of the law has therefore been done, but it is not finished.
The Hungarian reluctance is incomprehensible from a practical point of view, because it is practically impossible for Putin to appear in Hungary, and it is therefore unlikely that it is here that the arrest warrant would have to be enforced.
Hungary is the only country in the EU that has not promulgated the Rome Statute.
"This reflects badly on Hungary and has no meaningful benefit," said Hoffmann, agreeing that there was no dispute among domestic international law experts that the Rome Statute should have been promulgated long ago.
Omission across governments
The promulgation was first attempted in 2003 – during the left-wing MSZP-SZDSZ coalition government -, and then in 2016 and 2021. It was approved at the professional stage, and the ministry gave it the go-ahead, so it was going to be put on the agenda, but it got stuck somewhere, apparently at the political stage. This was also confirmed by Péter Bárándy, who supported the promulgation in 2003 as Minister of Justice. He was unable to recall the reasons for the decision not to promulgate it then, saying that the issue was not a highly relevant one at the time, but he saw a political obstacle behind what happened both then and since.
"We would not have been put in a precarious position by the promulgation, we had no interest to justify this postponement. There was no objection from a professional point of view."
It is even stranger that the promulgation of the Rome Statute, signed under the first Fidesz government, did not happen under the subsequent Fidesz governments – "although, knowing the current legislative situation, changes could have been implemented in 12 minutes, as we saw in the case of the law on the Hungarian Medical Chamber", said the former Justice Minister of the MSZP-SZDSZ government.
The reasons were never made public, Péter Kovács, who was a constitutional judge between 2005 and 2014 and has been a judge at the International Criminal Court since 2015, pointed out in his 2019 analysis.
Hungary takes the initiative, then steps aside
This difficult-to-explain, contradictory attitude is even more pronounced when one considers that Hungary was one of the 38 states that initiated an ICC investigation into war crimes in Ukraine.
"This was important, and it accelerated the process. As a consequence, the arrest warrant was issued and Hungary is now acting as if it has nothing to do with it."
"It's like the government voting for EU sanctions against Russia and then talking loudly about how bad they are," said international lawyer Tamás Hoffman, citing a very real example.
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