Hungary's Open Defiance And International Criminal Court's Uncertain Future

The Hamas attack of Israel on October 7 has set off a chain of events that sees no potential end in sight soon. The horrific nature of the attack and the equally dreadful counterattack by the Israel Defence Forces (IDF) has ignited a regional armed conflict with non-state groups and several Arab and European countries playing a proxy war with each other. In response, the IDF launched a ground invasion intended to effectively cripple the offensive capabilities of Hamas and in the process had inflicted collateral damage on innocent civilians. Every day, reports are pouring in of civilians killed by Israeli airstrikes. What Hamas has done to innocent Israeli civilians, the IDF is paying it back with equal measure on innocent Palestinian citizens by deliberate, systematic and mass murders. For staunch believers of a rule-based international world order, even armed conflicts must abide by the laws of war. The International Criminal Court (ICC), which came into force through the Rome Statute of 2002 was created specifically to prosecute individuals accused of heinous international crimes. Though it faces criticism from some quarters, it has successfully prosecuted and punished more than ten individuals/heads of states charged with the gravest of crimes known to humanity. Currently a high-profile trial is ongoing in the Court pertaining to the alleged crimes of humanity charged against the former Phillipines President, Rodrigo Duterte.

The Nature of the International Criminal Court and its singular reliance on International Co-operation

The International Criminal Court is a permanent court established solely for prosecuting individuals accused of the worst crimes known to humanity. In showcasing its permanent nature, it is therefore different from the several ad-hoc tribunals like the International Criminal Tribunal for Yugoslavia and Rwanda. Rome Statute is the law that lays down all the rules and regulations dealing with the Court. However, it needs to be clarified that the ICC does not override national courts as it clearly emphasizes in its preamble that it shall be complementary to domestic criminal courts. So, it is the court of last resort, stepping in only when national courts fail or refuse to cooperate. In prosecuting individuals, the Court heavily relies on state parties' cooperation. Part 9 of the Rome Statue is titled 'International Co-operation and Judicial Assistance' and its articles highlight the relevance of State cooperation. Article 86 imposes a blanket obligation on State parties to co-operate during investigation and prosecution of criminal acts that fall within the court's jurisdiction. The Court does not have any enforcement officers of its own and it solely relies on State parties to hand over the accused to fulfill its part in assisting the court in effectively prosecuting the accused. But to assist the Court, first it should be shown that the State party has some mechanism to do so. Article 88 states that national laws should be well equipped to endure due compliance with the procedures related to cooperation and assistance. But in Hungary's case, it is also not clear whether the domestic laws are adequate as the ICC ratification is still not domestically promulgated.

The ICC Arrest Warrants and the Obligation to Surrender Persons to the Court

On November 23^rd, 2024, the ICC prosecutor issued arrest warrants against Hamas leaders and Israeli leaders, Benjamin Netanyahu and Yoav Gallant. Article 58 1(a) of the Rome Statues gives power to the Pre-Trial Chamber to issue arrest warrants if there is reasonable ground to believe that the individual has committed a crime falling within the scope of the court's jurisdiction. Based on the Prosecutor's application, it is the Pre-trial chamber that issued an arrest warrant. As per the Rome Statute, State parties are legally obliged to honor the arrest warrant by arresting the accused and then handing them over to the ICC to face trial.

Therefore, if the above-mentioned Hamas or Israeli leaders ever set foot in an ICC State party, they will have to be sent to the next flight to Hague. Hungary has ratified the Rome Statute and thereby became an ICC state party in 2001. But despite ratification, it is not promulgated as a domestic law. Therefore, doubts remain as to whether Hungary is absolutely bound to accept ICC jurisdiction. But on 2^nd April 2025, Netanyahu landed in Budapest and instead of being arrested, he was warmly embraced by Viktor Orban, the Hungarian Prime Minister. By openly defying the ICC arrest warrant, Orban has started a new fight against the international rules-based order. As of now, Netanyahu is an ICC fugitive, accused of potential war crimes and the State of Hungary has absolute obligation to arrest and hand over him to stand trial. To rub salt to the wound, Orban also declared Hungary's exit from the International Criminal Court. Many organizations protested Orban's act by holding that as Hungary's exit procedures will take at least a year, the duty to arrest exists. According to Human Rights Watch, Hungary's duty is to arrest and not to welcome the accused.

Trump and EU Double Standards

To add weight to Orban's actions, the United States and some European Union nations have also been vague in fully implementing the arrest warrant. Trump has been an outspoken critic of the ICC and even the French, German and Italian heads of States have expressed doubts about arresting the Israeli head of state. The United States President had even issued an executive order sanctioning the ICC staff members and even freezing their assets. The stand of the European Union (EU) in this matter also is a matter for concern. The EU projects itself as the guardian of liberal values but has shown double standards in approaching the issue of prosecuting heads of states by the ICC. Russian President Vladimir Putin's visit to Mongolia in September 2024 (an ICC State party) invited immediate condemnation by the EU and the diplomatic pressure exerted on South Africa to dissuade the country from hosting Putin during the 2023 BRICS Summit is well known. While in Orban's case, the EU does not even seem to agree on a common statement with even some EU member states trying to find legal loopholes in the state parties' duties to abide by ICC arrest warrant. Thus, the clear absence of a joint stand in this matter clearly fuels fodder for Orban to openly defy the arrest warrant and ensure a policy of non-cooperation with the Court.

The Uncertain Future of the ICC

The International Criminal Court has convicted a dozen leaders and has issued arrest warrants for more than sixty individuals. But in arresting leaders of Global North and even close allies of the G7 countries, the Court's fiat falls to deaf ears. Hungary is a full member of the European Union and a country that has borne the brunt of soviet and Nazi Atrocities in the Past. Its citizens had fought tooth and nail against far superior Soviet forces in the 1956 revolution and its memories are still cherished in daily life. For a member of the European Union, and a part of the European Liberal democratic system, Hungary is treading a dangerous path of illiberalism. Quite interestingly, it is the stand of the European Countries also that is worrying. The sheer absence of a united voice calling for the immediate arrest of the accused Israeli leaders exposes the EU's double standards. In defying the ICC arrest warrant, Hungary has now proclaimed to the world, that it will defend alleged aggressors and will wash the hands of their alleged war crimes by embracing them with a hug instead of handcuffs. For the ICC, this means that high profile heads of states aligned with economically developed countries of the Global North or the G7 grouping are untouchables. As of now, global politics has trumped international law and if such a future persists, then the role of the ICC as a truly universal court of last resort will be in absolute jeopardy.

Author is an Assistant Professor, School of Law, Christ University, Bengaluru. Views Are Personal.