Ця стаття також доступна українською мовою тут./This post is also available in Ukrainian here.
On Friday, the International Criminal Court (ICC) announced it had issued arrest warrants for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova. By issuing the warrants the Court confirmed it has “reasonable grounds to believe” that Putin and Lvova-Belova are criminally responsible for the war crimes of unlawfully deporting and unlawfully transferring children from occupied Ukraine into Russia (under articles 8(2)(a)(vii)) and 8(2)(b)(viii) respectively).
It is a bold decision by the Court to go straight to the top and charge Putin. Yet it makes sense in this situation. The project of accountability for crimes committed in Ukraine since Putin’s 2022 full-scale invasion has had more resources dedicated to it than any comparable conflict in recent memory. As a result, there are a dizzying number of accountability efforts underway both inside Ukraine and across Europe. The ICC alone, however, has the ability to seek Putin’s prosecution.
Putin cannot be prosecuted in domestic courts because international law provides him head of state immunity. (The issue of whether he can claim the same immunity at the ICC given the way the Court gained jurisdiction in this case is likely to be debated across the legal blogosphere in the coming weeks, but at the very least, an international prosecution of Putin is not the non-starter that a domestic prosecution would be). Moreover, by charging Putin, the ICC Prosecution fulfills its mandate of holding those “most responsible” to account in the eyes of the international community.
It bears acknowledging that no realistic observer expects to see Putin in the dock in the short-medium term. While all member states of the ICC are under a legal obligation to arrest Putin should he come onto their territory, Putin is now on notice and unlikely to travel. Securing custody of a suspect is an important function of an arrest warrant; it is not, however, its only function.
The symbolic aspect of an ICC arrest warrant against Putin matters first and foremost to Ukrainians, who seek acknowledgement of the harms they have faced and want Putin’s leadership to be delegitimized in the eyes of the international community. And the effects of the charge extend beyond Ukraine: to diplomats, to Russian dissidents, and to Russian soldiers and families involved in the publicly documented child transfer operation. Shining a spotlight on the particularly heinous conduct involving forced transfer of children also clarifies for the international community the stakes in this conflict.
The Putin arrest warrant also changes the playing field for all political actors working on an end to the war. One prominent debate we are likely to see in the coming weeks is whether the UN Security Council should now use its authority under Chapter VII of the UN Charter to require the ICC to suspend its investigation against Putin “in the interests of international peace and security.” Article 16 of the ICC’s constitutive document, the Rome Statute, enables the UN Security Council to put any prosecution on hold for a period of 12 months. At the end of the 12 months, the Security Council can renew the suspension for a further 12 months, and could continue to make this annual renewal indefinitely.
On one account, Russia itself could pursue such a resolution. In exchange for supporting Russia’s position on suspension, other UN Security Council members would gain leverage to push Russia to withdraw from Ukraine, or at least extract concessions that would otherwise be unachievable. Human rights advocates and many Ukrainians would likely oppose the effort, and some states may view it as a morally unacceptable effort to trade justice for peace. It seems equally possible though for Russia, which refuses to recognize the ICC, to decide that pursuing such a resolution would give the ICC undue recognition. If Russia takes this view then even an effort by other members of the UN Security Council to pursue an Article 16 strategy could be thwarted by a Russian veto.
Less visibly, but as importantly, the arrest warrant has the potential to shift the narrative around Putin inside Russia. We can anticipate some state-sponsored rallying around Putin in the immediate aftermath of the announcement. For opponents of Putin’s regime however, be they vocal dissidents or those currently silent, the arrest warrant has the potential to invigorate the space for imagining a post-Putin Russia. More specifically in terms of the charges of unlawful deportation and transfer of Ukrainian children, the arrest warrant provides a counter-narrative to Putin and Lvova-Belova’s efforts to portray the transfer program to the Russian public as a humanitarian operation.
Moreover, as the ICC itself stated, “public awareness of the warrants may contribute to the prevention of the further commission of crimes.” Few would expect an arrest warrant to deter Putin at this point. However, the ongoing relocation program cannot be continued without the work of Putin’s foot soldiers. Whether they will be aware of their potential criminal liability, let alone decide to disobey orders or refuse cooperation because of it, certainly remains to be seen, but these outcomes could be among the ICC’s motives for going after these particular crimes at this stage in its investigation. Finally, the stain of war crimes charges in relation to the program may dissuade further participation by the Russian families who have been fostering and adopting Ukrainian children.
I was at the ICC (as a lawyer in the Office of the Prosecutor) over a decade ago when it issued its first arrest warrant for a sitting head of state – then-President of Sudan, Omar al-Bashir. The decision to make the arrest warrant public was a fraught and deeply debated one; Friday’s decision by the ICC would have received no less consideration. There are obvious downsides to making the warrant public – had it remained under seal, Putin may well have traveled to a country that would have arrested him. But to focus solely on his apprehension is to misunderstand the full power of an ICC arrest warrant. The symbolic, diplomatic, and deterrent effects of a high-profile warrant are the ones to watch for in the coming weeks and months.