ICC arrest warrants: the process when a state fails to act

When a suspect wanted by the International Criminal Court lands in a member country and walks away, nobody from The Hague steps in to detain them. The Court has no officers and no territory of its own. Everything depends on the state where the person happens to be. What follows a refusal is a legal process that is slow, largely public and, as recent cases show, mostly political in its outcome.

Why the Court relies on states

The Rome Statute, the treaty that created the Court, puts the duty on its members. Article 86 requires states parties to cooperate fully with investigations and prosecutions, and Article 89 obliges them to arrest and surrender people named in a warrant. Without that state cooperation, a warrant stays on paper. The Court cannot try suspects in their absence at the trial stage, so an unexecuted warrant can leave a case frozen for years.

A warrant is not a finding of guilt. It means judges found reasonable grounds to believe the person committed a crime within the Court's jurisdiction. Those named are presumed innocent, and several of them reject the allegations and the Court's authority.

The formal response: Article 87(7)

If a state fails to comply with a request, Article 87(7) lets the Court make a formal finding of non-compliance. The judges must be satisfied of two things: that the state did not do what was asked, and that the failure prevented the Court from exercising its functions.

What the judges examine

The chamber usually asks the state for written observations before deciding. States have offered several arguments, including:

• that the suspect is a serving head of state and so immune from arrest;
• that another treaty obliges them to guarantee safe passage to visiting leaders;
• that domestic law does not allow them to act;
• that a competing extradition request from another country was pending.

Judges have generally rejected these. Article 27 of the Statute removes official capacity as a shield, and the Court has held that national law or other commitments do not excuse a state that never raised its difficulty with the Court in good time. The Statute expects a state with a genuine problem to consult the Court first.

Where the finding goes

Once a chamber finds non-compliance, it decides whether to refer the matter onward. The referral normally goes to the Assembly of States Parties, the body of member states that oversees the Court. Where the United Nations Security Council itself referred the situation to the Court, as it did for Sudan and Libya, the Council can also be notified.

Recent examples

In the Hungarian case, Mr Netanyahu was on Hungarian territory from 3 to 6 April 2025. The judges noted that Hungary's announced withdrawal from the Rome Statute would not take effect until 2 June 2026, so it remained bound in the meantime. In the Italian case, the chamber said Italy had not properly executed the request while Mr Njeem was on its soil and had not consulted the Court about its stated difficulties.

The Tajikistan finding concerned Mr Putin's visit to Dushanbe from 8 to 12 October 2025. Tajikistan had told the Court it could not act because of head-of-state immunity, Russia's non-membership and regional agreements. The judges rejected those arguments.

Earlier, the Court's first warrant for a sitting head of state, issued in 2009 for Sudan's Omar al-Bashir, produced a string of similar disputes after he travelled to member countries. The Appeals Chamber's 2019 ruling on Jordan confirmed that head-of-state immunity does not block a request from the Court.

What the Assembly can do

The Assembly's procedures for non-cooperation allow its Bureau, a smaller steering group, to invite the state concerned to explain itself and to say how it will cooperate in future. In Tajikistan's case, that meeting was set for 6 May 2026. The Bureau then reports to the Assembly with any recommendations.

That is largely the limit. The Statute does not provide for fines, suspension of voting rights or other binding penalties, and adding them would require a treaty amendment. Analysts who study the system describe the result as a gap between judicial findings and a consistent political follow-up. Diplomatic pressure, public criticism and reputational cost are the tools in practice.

Withdrawal and reversals

Some states respond by leaving. Under Article 127, withdrawal takes effect one year after notice, and obligations that arose beforehand continue. Hungary gave notice in 2025 but notified the United Nations on 29 May 2026 that it was withdrawing that notice, and the Court welcomed the decision. Reports in 2026 indicate that Tajikistan is considering withdrawal, though the domestic steps remain unclear.

Compliance does happen. The Philippines surrendered former President Rodrigo Duterte to the Court in March 2025, despite having left the treaty in 2019. The Court maintains that it keeps jurisdiction over crimes alleged to have occurred while the country was a member.

The wider picture

When a state does not act, the Court can record that fact, give reasons and pass it to its member states. It cannot make anyone arrest the suspect. Whether ICC arrest warrants are enforced therefore turns on the willingness of governments, and on how consistently the Assembly of States Parties chooses to respond to non-compliance.