The ICC Arrest Warrants against Vladimir Putin and Maria Lvova-Belova – An Outline of Issues

On 17 March 2023, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) issued arrest warrants for Vladimir Putin and Maria Lvova-Belova. Putin is the President of the Russian Federation. Lvova-Belova is the Commissioner for Children’s Rights in the Office of the President. The crimes alleged concern deportation and transfer of children as war crimes. Following on from Sergey’s post yesterday, this post provides an overview of certain legal issues relating to the issuance of the warrants, as well as a brief reflection on some of the policy tensions it generates.

Crimes within the Jurisdiction of the Court

The ICC has jurisdiction over crimes committed on the territory of Ukraine on the basis of Ukraine’s declaration pursuant to Article 12(3) of the Rome Statute. The arrest warrants concern crimes alleged to have been committed on the territory of Ukraine at least from 24 February 2022. These are the war crimes of (i) unlawful deportation of population under Article 8(2)(a)(vii) of the Rome Statute and (ii) the unlawful transfer of population under Article 8(2)(b)(viii) of the Rome Statute. The ICC’s press release indicates that the warrants focus on crimes alleged to have been committed against children.

Of further note is that the first crime entails a grave breach of the 4^th Geneva Convention (GCIV), as set out in Article 147 of GCIV. That has additional implications insofar as it triggers States’ repression obligations under Article 146 of GCIV – Contracting Parties ‘shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.’ At least in respect of Putin, however, the question of immunity ratione personae may arise in proceedings in a domestic court.

Modes of Liability

 The warrants specify that Lvova-Belova is alleged to bear criminal responsibility under Article 25(3)(a) of the Rome Statute – as a perpetrator of the crimes for ‘having committed the acts directly, jointly with others and/or through others…’ Putin is alleged to bear responsibility under the same provision – Article 25(3)(a) – but also pursuant to the doctrine of superior responsibility under Article 28(b) of the Statute. That provision provides:

With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Notably, here we are dealing with alleged wrongful omissions of a civilian superior, and the provision specifies alternative standards in the fault element that extend beyond intentional or knowing wrongdoing. More precisely, a civilian superior may be liable where they ‘consciously disregarded information which clearly indicated’ that their subordinates were committing or were about to commit a crime within the jurisdiction of the Court. Despite the acquittal of Jean-Pierre Bemba Gombo by the Appeals Chamber of the ICC in 2018, a decision which generated extensive comment on this blog, superior responsibility, with its focus on omissions and reduced fault standards, may remain a promising avenue for pursuing the accountability of top and mid-level leaders.

Nationals of Non-Parties and Immunities at the International Criminal Court

The identities of the targets of the warrants raise two long-standing questions of international criminal law. First, Putin and Lvova-Belova are nationals of a non-party to the Rome Statute – Russia. Certain States, notably the United States (US), have objected to an ICC exercise of jurisdiction in this context, absent a Security Council referral or consent of the State. This is not a compelling or widely held objection, either among States or scholars, but it persists. Indeed, it was reported earlier this month that even if US opposition to co-operation with the Court is softening, the Department of Defence is blocking the sharing of evidence with the Office of the Prosecutor. The underlying concern, here, is the potential exercise of jurisdiction over US nationals. To be clear, though, the orthodox view is that Ukraine’s Article 12(3) declaration establishes the Court’s jurisdiction over crimes committed on the territory of Ukraine.

Second, an arrest warrant targeting Putin implicates the difficult issue of immunity ratione personae for a head of State before the International Criminal Court. From the Court’s perspective, the decision of the Appeals Chamber in Al Bashir appears to have settled the matter. There, the Appeals Chamber held (para 1) that: ‘There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court’. It further held (paras 2, 4) that the putative absence of such an immunity before an international court means that a requested State cannot invoke the immunity it owes to another State under custom to justify non-arrest. The issuance of the arrest warrant triggers the cooperation obligations of all 123 State Parties, as set out in Part 9 of the Rome Statute.

What this looks like in practice may be fraught. As a starting point, there remains a question about wider acceptance of the Appeals Chamber’s holding in Al Bashir in relation to the immunity issue in custom, and of its implications on the horizontal plane between States. It is probably fair to say that the Appeals Chamber’s judgment in Al Bashir was less popular in the academy and in some Ministries before the invasion of Ukraine than afterwards; as always, events drive change. One question, here, is how to understand States’ responses to the warrants in relation to the underlying customary question. This issue of immunity may soon become live. It has been reported that Putin is due to attend a BRICS summit in South Africa in August – a State that remains a Party to the Rome Statute and which previously did not arrest President Al Bashir of Sudan in 2015. If Putin does travel, South Africa is bound under the Rome Statute to arrest him. But to put it like that is to immediately see the immense diplomatic, political, economic, and possibly military implications of the decision, not to mention South Africa’s own understanding of its legal obligations to States that are not parties to the Rome Statute. Moreover, it may be that different parts of the same State take different views on this question.

Wider Questions and Tensions

The issuance of these warrants will inevitably bring up foundational questions of international criminal justice. These include the issues of prioritization, both as to which kinds of crimes are pursued and who the victims are, but also which situations or conflicts are resourced, and questions of selectivity and equal application. Beyond these points, the issuance of an arrest warrant for a sitting head of state in relation to an ongoing armed conflict makes stark the potential tensions between the pursuit of criminal accountability and other aims or goods, predominantly a peace settlement but also a range of other ends that may be sought in negotiations. On this issue, caution is required, and broad and certain claims will likely fail to account for the context of the conflict, the shifting political balance of power across and within States, and the (varying) preferences of groups suffering from ongoing violence.

As Rebecca Hamilton notes, the issuance of the warrants may shift discussion towards the potential use of Article 16 of the Rome Statute by the Security Council. Article 16 – Deferral of Investigation or Prosecution – provides:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

As the OTP’s Interests of Justice Policy (2007) notes, this provision entails recognition of ‘a role for the UN Security Council to defer ICC action where it considers it necessary for the maintenance of international peace and security.’ Although the politics will no doubt be complicated, Article 16 may provide a route through which political interest overrides legal claim.

This framing assumes a clear distinction between the Court – a legal institution pursuing its legal mandate of criminal accountability – and the political judgment of the Security Council. It is one that informs the OTP’s understanding of the scope of its discretion under Article 53(1)(c) and 53(2)(c) of the Statute. The OTP’s 2007 Policy, re-affirmed in its 2013 Policy Paper on Preliminary Examinations, holds that the term ‘interests of justice’, which conditions the Statute’s grant of prosecutorial discretion, ‘should not be conceived of so broadly as to embrace all issues related to peace and security.’ That conclusion, which has been criticized in the scholarship, may come under pressure as the political situation develops.

Conclusion

The issuance of arrest warrants for two suspects for two distinctive war crimes is a small step in a wider project of accountability in relation to the invasion of Ukraine. Indeed, last week the New York Times reported on a possible 2^nd set of charges at the ICC – relating to the targeting of civilian infrastructure. This is alongside ongoing investigations within Ukraine, as well as discussions about a tribunal for the crime of aggression. Nonetheless, it may be a step with immense legal, institutional, political, and practical implications.