“Failure to Act” of Mr Putin: Liability by Omission

As announced on 17 March 2023, the International Criminal Court (ICC) issued an arrest warrant for Mr Vladimir Putin (the President of the Russian Federation), who has been charged with unlawful deportation and transfer of children (Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute) from the occupied areas of Ukraine to the Russian Federation at least from 24 February 2022 onward. Mr Putin’s individual criminal responsibility allegedly stems from acting directly, jointly with others and/or through others and as a civilian superior (Articles 25(3)(a)) and 28(b) of the Rome Statute). In addition to Vladimir Putin, the so-called Mother Russia Ms Maria Alekseyevna Lvova-Belova (who will not be the subject of analysis here) is allegedly responsible for acting directly, jointly with others and/or through others (Article 25(3)(a) of the Rome Statute) regarding the above-mentioned crimes.

The arrest warrant has resulted in numerous debates, including regarding the choice of crimes which have been included (listen here) and its political and legal effects (see here). The ICC decision to go “straight to the top” and charge Vladimir Putin must surely be commended for its legal and political value. However, as the full text of the arrest warrant is not public, questions arise on the reasons behind the choice of the modes of liability. In addition to direct perpetration (commission), the Pre-Trial Chamber II found reasonable grounds to believe that Mr. Putin is responsible for the alleged crimes under the so-called responsibility of “other superiors” (Article 28(b) of the Rome Statute). The decision to rely on multiple forms of responsibility for Mr Putin (alternative and cumulative charges are possible as mentioned in paras. 67-68 of the Chamber Practice Manual) is understandable, since this allows for greater flexibility for the Chamber to decide on the most accurate mode of liability at a later stage. However, at the potential future Confirmation of charges phase, which might be done even in absentia under certain requirements (see Article 61(2) of the Rome Statute), the Pre Trial-Chamber might consider a different qualification for Mr Putin’s omissions.

Indeed, taking into account Putin’s role and statements (see for instance here, here and here) and given that responsibility of commanders and other superiors is the mode of liability with the lowest threshold for mental element – compared, for instance, to complicity – a different approach seems desirable in the Confirmation of charges hearing. Specifically, in addition to direct perpetration, aiding and abetting and contributing to the commission of a crime by a group (Article 25(3)(c) and (d) of the Rome Statute) could apply the given case and would not be a novelty in practice of the Court (see for instance Yekatom and Ngaïssona, The Document confirming Charges, paras. 120, 185 and 625).

Omissions and the International Criminal Court

Considering the secrecy of the arrest warrant, one may only assume how the Prosecutor and the Pre-Trial Chamber built the reasoning concerning the modes of liability for Mr Putin in the given crimes. However, precisely the fact that they invoked both commission and responsibility of “other superiors” suggests that the responsibility of Mr Putin for war crimes of deportation and forced transfer lies (at least partially) in the accused’s omissions.

With the exception of responsibility of commanders and other superiors, omissions are not explicitly regulated in the Rome Statute. However, the majority supports the idea that the Court can address other forms of omissions. Doctrine suggests, for instance, that the term “conduct” used throughout the Rome Statute is to be understood as including actions and omissions (Berster, p. 645, van Sliedriegt, p. 56). Most authors rely heavily on the jurisprudence of ad hoc international criminal tribunals, especially the International Criminal Tribunal for the Former Yugoslavia (ICTY), which stated that omission can fall within actus reus of various crimes and modes of liability, and issued conviction for aiding and abetting through omission at least in one case (Mrškić and Šljivančanin). Similar conclusion was reached in decisions issued by the International Criminal Tribunal for Rwanda and by the hybrid courts (see for example Ntagerura et al, para. 370; Case 002/01, paras. 693, 700 and 706). Furthermore, the ICC case law speaks to the possibility of including omission in the purview of the Court (Muthaura et al, para 46; see also Lubanga Dyilo, paras. 152 and 351–352; Katanga and Ngudjolo Chui, paras. 287, 310, 315, 357, 368-369 and 529).

Should “Failure to Act” always be qualified as Superior Responsibility?

Based on the above, there are plausible grounds to conclude that, at the future Confirmation of charges stage, the Pre-Trial Chamber will have the possibility to deal with omissions beyond the scenarios corresponding to responsibility of commanders and other superiors (known under the umbrella term “superior responsibility”). But how to decide whether “failure to act” should be qualified under Article 28 of the Rome Statute or under other modes of liability when both seem an option?

In this regard, the ICC endorsed that the examination of superior responsibility under Article 28 is only necessary if it is determined that there is no substantial ground to believe that the defendant was criminally responsible under Article 25(3) of the Rome Statute (Bemba, para. 342). Such a conclusion is aligned with findings of the tribunal which dealt with the issue extensively, namely, the ICTY. The latter asserted the following: when failure to act by someone who has authority and is in a superior-subordinate relationship with the physical perpetrator may result both in various modes of direct and accessory liability (planning, instigation, ordering, principal commission or aiding and abetting) under Articles 7(1) or superior responsibility under Article 7(3) of the ICTY Statute (Galić, para. 176), a conviction should be entered only on the basis of Article 7(1) ICTY Statute (Blaškić, paras. 91–92; Kordić and Čerkez, para. 34; Krstić, para. 605).

In a similar vein, Roth has suggested that whenever a superior goes beyond his role as a commander, actively or passively supports crimes committed by his or her subordinates, and shows an additional aspect of a guilty mind, he or she must be convicted for a more consequential form of responsibility (Roth, para. 4; see also para. 16). Moreover, albeit in the context of superior responsibility for genocide, Cassese and Gaeta assert that the superior may be equated to a co-perpetrator or, at the very least, to an aider or abettor, when he or she knows that the crime is underway or is about to be perpetrated or is in the process of being committed and “deliberately refrains from forestalling the crime or stopping it” (Cassese and Gaeta, p. 129-130). At the same time, superior responsibility corresponds better to situations when the offender recklessly or negligently breaches his or her supervisory duties. Applying this to the case of Mr Putin, who has publicly endorsed and openly supported the policy of forced deportation and transfer of children, about which he arguably knew everything since the beginning (see here and here), it seems highly unconvincing to say that his role was anything less than “deliberate refraining from stopping the crime”.

“Failure to Act” and degree of concrete influence

It would be crucial for the ICC to consider that the difference between superior responsibility and other forms of omission liability is, inter alia, the degree of concrete influence of the superior over the crime (which should not be conflated with physical presence or proximity, Roth, para. 18) in which the subordinate participates. In specific, “if the superior’s intentional omission to prevent a crime takes place at a time when the crime has already become more concrete or currently occurs, his responsibility would also fall under Article 7(1) of the Statute” including, inter alia, principal commission and aiding and abetting (Blaškić, para. 664). This is consistent with the approach of the ICC in the judgment against Katanga. In examining the types of conducts that lead to the determination of a significant contribution to the commission of a crime by a group (art. 25(3)(d) of the Rome Statute), the Court affirmed that the contribution must have had a bearing on the occurrence of the crime and/or the manner of its commission by the accused’s acts or failure to act (Katanga, paras. 1633-1634).

Based on the above, whenever a superior actually participates in the commission of the principal crime through omission, for example through inaction amounting to some sort of facilitation to carry out the crime by the physical perpetrator or to encouragement, a more suitable theory that the Prosecutor of the ICC should consider is that of commission by omission (as a distinct mode of principal liability) or accessory liability by omission. Therefore, such a person should be held responsible as a direct perpetrator or least as an accomplice for his/her “failure to act”. Moreover, following the legacy of ad hoc international criminal tribunals’ which, as previously mentioned, endorsed the idea of criminal liability by omission (Werle, p. 965), Mr Putin’s superior position may be further considered as aggravating circumstances in sentencing (Kvočka et al, para. 104).

Potential reasons and implications of the current approach

One may speculate on what are the potential reasons for the current approach to focus on principal perpetratorship and superior responsibility. First, such a strategy might result in broader public support, given that responsibility of commanders and other superiors is oftentimes perceived as “the one” for persons with high levels of responsibility. This is a wrong perception, as superior responsibility tends to carry a lower sentence than modes of liability such as direct perpetration and aiding and abetting (Hola et al, p. 91). Second, including superior responsibility in the charges is surely a “safer path to go” in terms of evidence. Indeed, superior responsibility can always be a useful alternative if no other mode of liability can be proved. For instance, when dealing with omissions regarding failure to discharge the duty to intervene in the crimes committed by his troops in the case of Strugar, the ICTY was not convinced that the offender had direct and substantial effects on crimes. Thus, the applicable mode of liability was superior responsibility (Strugar, paras. 355-356 and 446). However, in the case of Mr Putin, the Pre-Trial Chamber should consider that his acts and/or omissions had at least a direct and substantial effect on the commission of the concerned crimes, and superior responsibility should only be the “emergency exit” for Mr Putin’s “failure to act”. Finally, the lack of consistent jurisprudence on criminal liability by omission perhaps contributed to the fact that it was not seen as the most appealing option. Nevertheless, this concern should only encourage the ICC to create consistent and strong case law on omissions.

Conclusions

In conclusion, we praise the ICC efforts to send a strong signal to Russia and indirectly to the rest of the heads of States who engage in perpetration of international crimes. At the same time, we hope that the Court will consider in the following phases of the procedure the degree of Putin’s concrete influence over the concerned crimes and opt for a mode of liability which best corresponds to his actual involvement.

The opinions expressed in this publication are those of the authors. They do not reflect the opinions or views of the organizations the authors work for.