The International Criminal Court goes all-in: What now?

The bombshell announcement on 17 March 2023 of ICC arrest warrants against Russian President Putin and his Children’s Rights Ombudswoman Lvova-Belova put an end to one-year long speculations about the first cases to be brought before the ICC in relation to Ukraine. Pre-Trial Chamber II (PTC II) found reasonable grounds to believe they committed war crimes of unlawful deportation of population (children) and unlawful transfer of children from the Ukrainian occupied territories to Russia (Article 8(2)(a)(vii) and (b)(viii) of the ICC Statute).

What difference does the issuance of these arrest warrants make and what can be expected to happen next? I provide a few initial thoughts below (please make sure to check the excellent takes by Mark Kersten and Rebecca Hamilton).

The Ukrainian authorities have welcomed the ruling. President Zelenskyy praised it as a ‘historic decision, from which historical responsibility will begin’. Their counterparts in Moscow were defiant: Russia is no party to the Statute and recognizes neither its jurisdiction nor its judicial decisions. Russia’s UN representative Nebenzia went as far as to state: “We consider all documents coming from this body as legally null and void. By all appearances, the ICC is indeed on the road to self-destruction, above all in terms of credibility and international recognition”. He also quoted Bolton’s 2018 threat to ‘let the ICC die on its own’. Putin has not commented, and Medvedev responded with his signature profanities on his Telegram channel and threatened a hypersonic missile strike on the ICC seat in The Hague (making himself liable for prosecution for Article 70 offences against the administration of justice).

The pronouncement turned Lvova-Belova and Putin into ICC suspects and fugitives from international criminal justice in an instant. The pair are sought for the war crimes they allegedly committed as (co- and/or indirect) perpetrators under Article 25(3)(a) of the Statute. Putin is also allegedly responsible as a superior under Article 28(b) of the Statute —a first for the Court. In another first, the judges decided it was in the interests of justice to leave the warrants classified to safeguard the investigation and protect vulnerable victims and witnesses and only to disclose the fact of their existence, the suspects’ names and their alleged crimes and modes of liability. In their view, the public knowledge of the warrants would contribute to preventing the further commission of the crimes. It remains to see whether the ruling would have any effect on the policy of deporting Ukrainian children and Russian families’ readiness to adopt them.

The choice of the charges and prosecutorial targets was not surprising, even though until the the warrants were unveiled it was uncertain whether the ICC would go for the top officials off the bat. During a 16 February working meeting used as a PR occasion to convey the humanitarian character of the policy, the two suspects discussed ‘evacuations’ of Ukrainian children to Russia. Lvova-Belova thanked Putin for enabling this practice and he inquired about the adoption into her own family of a 15-year-old from Donbas. The ICC Prosecutor filed confidential applications for the arrest warrants within a week, on 22 February 2023. During his fourth visit to Ukraine in early March, he signalled that abductions of children were an investigative priority for his Office, and this topic was raised with him by President Zelenskyy during their meeting.

On March NYT reported that crimes involving children were the subject of one of the two imminent cases at the ICC, the second concerning indiscriminate attacks by the Russian military on the Ukrainian civilian infrastructure. No official information is available on the status and details of this second case, but it cannot be excluded that Russia’s commander-in-chief would be in the crosshairs again, next to other high-ranking military officials. Given Putin’s alleged role as the architect of the war and large-scale criminality by the Russian forces in Ukraine, it is highly likely that further charges will be (or have been) brought against him at the ICC.

The 17 March 2023 warrants are an important milestone in the path towards accountability for core crimes in Ukraine. A seismic event on both legal and political planes, the ICC’s decision is first and foremost an act of norm-expressivism conveying, firstly, a forceful opprobrium of heinous crimes which turn children into the ‘spoils of war’ and, second, the message that even the most powerful must be called to account. The decision’s symbolism will nevertheless have real-life consequences before too long. Admittedly, barring unforeseen developments, Putin’s arrest and surrender to The Hague should not be expected to take place soon — or ever, considering his evidently firm grip on power in Russia as well as his senior age and life expectancy. Yet, the warrant has set off a countdown to the end. It imposes extremely high reputation costs on Putin, consigning him to the same club of former state leaders to which Slobodan Milošević, Charles Taylor, Muammar Gaddafi and Omar Al Bashir belong(ed). There can be no off-ramp and no undoing this: a suspected war criminal or an ICC accused may well become Putin’s last status — that is, unless he clears himself of the charges.

Over and above this diminished ‘wanted’ status and the war-crime-suspect stigma, one significant real-life consequence of the warrants is in constraining Putin’s and Lvova-Belova’s foreign travel as they will risk being surrendered to the ICC each time they set foot outside Russia. The 123 States Parties to the ICC Statute and States which accepted its jurisdiction in that situation (Ukraine), will be obliged to execute the warrants in accordance with the ICC’s request for arrest and surrender under Article 89(1). In addition, any State not party may be asked by the Court to provide assistance based on an ad hoc arrangement or an agreement as per Article 87(5)(a) of the Statute. Therefore, any such country on the territory of which the person is found may also be requested by the ICC to cooperate by arresting and surrendering that person, and it may well choose or even be obliged to do so to do so under said arrangement or agreement.

As noted, the text of the Putin and Lvova-Belova warrants and related filings are not yet in the public domain. It is therefore unclear whether the PTC II judges have already ordered the Registry to prepare and transmit to all ICC States Parties the cooperation requests for their arrest and surrender as well as for their transit through those States, nor—which is the primary question—whether (and how) they have addressed the inescapable issue of Putin’s immunity as an incumbent Head of State of a State not party to the Statute.

Article 98(1) enjoins the Court not to proceed with a request for surrender which would require the requested State to act inconsistently with its international law obligations (such as Putin’s personal immunity), unless the Court can first obtain the third State’s cooperation for the waiver of the immunity. However, the ICC Appeal Chamber held in its 2019 judgment in Jordan referral regarding Al Bashir that States Parties may not invoke the foreign Head of State immunity under customary international law as a ground to refuse an ICC request for arrest and surrender because such immunities pose no bar to the exercise of the ICC’s jurisdiction while States Parties are obligated to assist the Court therein. Thus, in the eyes of the ICC and as per its appellate jurisprudence, a request for the arrest and surrender of Putin would not be inconsistent with States Parties’ duties vis-à-vis other States to respect international law immunities and must therefore be executed by them in line with the Statute. It is therefore quite possible that the cooperation requests for the arrest and surrender of Putin (and Lvova-Belova) have already been or will shortly be transmitted to States Parties, placing Putin (and Lvova-Belova) under the risk of arrest abroad.

Since the start of the war in Ukraine, Putin limited his travel only to ‘Russia-friendly’ countries of Armenia, Belarus, Iran, Kyrgyzstan, Kazakhstan, Tajikistan, Turkmenistan, and Uzbekistan. Post-warrant, he will have to exercise an even greater caution in planning his itineraries. He will surely avoid visits to countries where he could be arrested, or seek to obtain advance guarantees of non-arrest from his hosts, which would potentially be problematic and inconsistent with the obligations States Parties have under the Statute. Tajikistan, which Putin visited in late June 2022, is a State Party, and so are Brazil and South Africa, Russia’s BRICS partners.

Therefore, Putin’s attendance of the BRICS Summit in Pretoria in August 2023 would appear unlikely. It could be realised only if the South African government were to give cast-iron guarantees of his non-arrest. But that would be a blatant violation of its obligations under the Statute, its domestic law and the Supreme Court of Appeal’s ruling regarding Al Bashir following his narrow escape from Pretoria in 2015 – of which the government is fully aware. Rather than engaging in mandatory and expectably difficult consultations with the Court to try and enable Putin’s attendance, South Africa might just as well pay heed to Justice Goldstone’s advice and conclude it would be better off not inviting Putin to the summit.

The Russian President will surely continue using safer ways to demonstrate his defiance of the ICC and of the ‘collective West’, in particular by travelling to the occupied Ukrainian territories, as he did over the last weekend when visiting the Crimea and Mariupol, and to countries that have supported Russia and would respect his personal immunity including Belarus, China, Iran, and some of the states in the Central Asian region. It will be important to monitor what mid- or long-term impact, if any, the ICC warrants will have on the internal politics in Russia. One can imagine that Putin’s reduced ‘global outlaw’ status and his toxicity as a war crime suspect, along with his growing international isolation and the increased cost of being associated with him, would contribute to the split of business and political elites.

As for the average Russian citizens consuming state propaganda, the warrants alone will hardly become the straw to break the camel’s back so as to undermine their support for Putin. Indignant TV talk show hosts will deftly exploit the long-cultivated public mistrust of international justice institutions as well as (often wilful) ignorance about the facts on the ground in Ukraine, to scold the ICC as an illegitimate and/or useless institution and its warrants against Russian officials as the proof of the Western conspiracy and an escalatory step in the NATO’s total war on their country.