Arrest warrant against Vladimir Putin: What powers does the ICC have against the Russian president

Why are the arrest warrants being issued?

Putin and Belova are allegedly responsible for the war crime of unlawful deportation and transfer of children from Russian-occupied areas of Ukraine to the Russian Federation under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute.

While the former relates to the “unlawful deportation or transfer or unlawful confinement”, the latter relates to the direct or indirect transfer of its own civilian population by an occupying power into the occupied territory or the deportation or transfer of the population of the occupied territory within or outside its territory.

The ICC said that it has reasonable grounds to believe that Putin bears individual criminal responsibility for the crimes of (i) having committed the acts directly, jointly with others, and/or through others under article 25(3)(a) of the Rome Statute (ii) his failure to exercise control properly over civilian & military subordinates under his effective authority, committing or allowing the commission of such acts, as per article 28(b) of the Rome Statute.

What is the ICC?

The ICC, headquartered in The Hague, Netherlands, was established under a 1998 treaty called the “Rome Statute” . It “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.”

Presently, 123 countries are party to the Rome Statute, including Britain, Japan, Afghanistan, and Germany. However, the USA has kept its distance, maintaining that ICC should not exercise jurisdiction over citizens of countries that are not a party to it. Similarly, India and China have also abstained from membership.

The ICC was established to prosecute the most heinous offenses only when a country’s own legal machinery fails to act, as was the case in former Yugoslavia and Rwanda. Unlike the International Court of Justice (ICJ), which deals with countries and inter-state disputes, the ICC prosecutes individuals. However, the ICC’s jurisdiction is limited to offences occurring after it came into effect on July 1, 2002.

Additionally, the offences should be committed either in a country that ratified the agreement or by a national of a ratifying country. The ICC can also practice its jurisdiction over cases referred by the UN Security Council to it.

Does the ICC have the power to prosecute Russia?

While Ukraine’s President Volodymyr Zelenskiy said the move would lead to “historic accountability”, Kremlin spokesman Dmitry Peskov said that Russia found this “outrageous and unacceptable”. He also said that any decision of the court was “null and void” due to Russia not being an ICC member, the news agency Reuters reported.

However, this move creates a situation where Putin risks arrest every time he travels. According to The New York Times, this move, along with the existing sanctions in the West, will further deepen his isolation and limit his overseas movements. Moreover, if he travels to a state party to the ICC, then that country must arrest him according to its obligations under international law.

Moreover, this is the first time that the ICC has issued an arrest warrant against one of the five permanent members of the UN Security Council.

In November 2022, an ICC prosecutor sought to move ahead with charges of war crimes against Ugandan militant and founder of the Lord’s Resistance Army, Joseph Kony. Despite Kony turning kidnapped children into soldiers and being accused of murder, cruel treatment, slavery, rape, and kidnapping, he is still a fugitive and continues to be free.

According to the ICC’s official website, “Ukraine is not a State Party to the Rome Statute”, but it has twice exercised its options to accept ICC’s jurisdiction over alleged crimes under the Rome Statute, occurring on its territory, under Article 12(3) of the Statute.

Article 12(3) states that if the acceptance of a state that is not a party to the statute is required, the state may accept the jurisdiction of the court for a crime concerned, by making a declaration to the Registrar and cooperating without any delay or exception.

The alleged crimes, including the deportation of children, were detailed in a report by the “Independent International Commission of Inquiry on Ukraine”, an UN-mandated investigative body that said some acts may amount to crimes against humanity.

What is the Independent International Commission of Inquiry Report on Ukraine?

In its report dated March 16, the commission outlined the body of evidence and how it points to Russian authorities committing a “wide range of violations of international human rights law and international humanitarian law in many regions of Ukraine and the Russian Federation.” Many of these amount to war crimes and include wilful killings, attacks on civilians, unlawful confinement, torture, rape, and forced transfers and deportations of children, the report states.

Contending that the Russian armed forces carried out attacks with explosives in populated areas with “an apparent disregard for civilian harm and suffering”, the report documented the indiscriminate, disproportionate attacks and failure to take precautions, thereby violating international humanitarian law.

The commission also found that the Russian military’s waves of attacks on Ukraine’s energy infrastructure from October 2022 and its use of torture could amount to crimes against humanity.

It also recommended further investigation to hold the responsible agents comprehensively accountable, in a way that includes both criminal responsibility and the victims’ right to truth, reparation, and non-repetition.

Based on more than 500 interviews, satellite images, and visits to detention sites and graves, the report served as an immediate precursor to the ICC warrants.