The International Criminal Court’s warrant issued for Russian President Vladimir Putin is groundbreaking in the sense that for the first time in history the Court directly targets the head of state of a big power, and what’s more – a sitting head of state.
It seems like Putin is headed towards Milosevic’s fate. The difference here is that the Serbian leader was tried by an international criminal tribunal especially created for the crimes in former Yugoslavia, while the Putin warrant is issued directly by the ICC.
What’s interesting is that the ICC isn’t going after the Russian war itself in the form of the international crime of aggression which is still undefined. Instead, the ICC targets specifically the treatment of Ukrainian children and their systematic unlawful deportation.
In other words, the international criminal court can’t judge as illegal the invasion itself and instead, focuses on the treatment of Ukrainian children as a war crime, which is a subset of all the crimes committed. The subject of the warrant is not the legality of the war itself.
Under the Rome Statute, unlawful deportation of population features as an act both under crimes against humanity and under war crimes. Crimes against humanity is the more complex crime under international criminal law, in comparison to war crimes. That is why the Court chose to go for deportation as war crimes and not deportation as a part of crimes against humanity.
Also, contrary to some comments, the warrant is not based on children’s rights – there is no such thing under international criminal law. Legally, the Court focuses on war crimes and/or crimes against humanity, and not rights-based violations. As to a prediction regarding more ICC action on Russia, that’s unlikely for the moment. It is a stretch to make the argument that Russia is engaging in genocide.
The warrant does not need Russia’s acquiescence or acceptance. Russia does not need to be a party to the Rome Statute of the ICC. The Kremlin already opened a case against the ICC prosecutors but that’s irrelevant regarding the jurisdiction and competence of the Court.
Regarding jurisdiction, the Putin warrant is based on territorial jurisdiction, and not nationality jurisdiction. In response, Russian officials already submitted that Russia is not a party to the Rome Statute of the ICC, but Russia doesn’t need to accept the ICC jurisdiction for the warrant to be legitimate. It is enough that Ukraine accepts ICC’s jurisdiction for acts that took place on Ukraine’s territory.
Same for Iraq, Afghanistan, and war crimes committed by the United States – based on the territoriality principle, the US doesn’t need to accept the ICC jurisdiction if Afghanistan, Iraq or other counties where the US has committed war crimes accept the ICC jurisdiction regarding US acts that took place on their territory.
The Americans are rightly worried that the Putin warrant may materialize into a legal precedent which later would serve against American officials and thus even expose American Presidents to the risk of being targeted by the ICC in a similar fashion. But that was the intent of the ICC since its creation – making sure that the most powerful are held to account.
As regards the practicality and enforcement of the Putin warrant, any of the state parties to the Rome Statute can, and what’s more – is obligated – to apprehend President Putin and send him to The Hague, The Netherlands. Currently, 123 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States. Other than the fact that the ICC warrant limits the countries which Russian President Vladimir Putin can visit freely, the warrant is valid for life.
If Russia retaliates by using force against The Netherlands – as some voices in Russia suggest – then it would be attacking a NATO member, which will trigger Article 5 of the North Atlantic Treaty on collective defense.
Either way, the warrant limits significantly President Putin’s moves. What’s more it could act as a deterrent to further deportation of children from Ukraine to Russia, and other crimes. This goes beyond the legal effects of the warrant. The ICC is often considered a dumping ground for African rebels, as most of the cases involved African individuals. Here, the ICC is sending a strong message, as the legal and political effects of the warrant remain to be seen.
[Photo by Kremlin.ru, CC BY 4.0, via Wikimedia Commons]
*Iveta Cherneva is an Amazon best-selling author and political analyst. The views and opinions expressed in this article are those of the author.