Russia is well known for employing hybrid warfare tactics, including the use of lawfare to achieve its aims. Those same tactics are now being used by Ukraine in its pursuit of global sanctions against Putin.
This week the International Criminal Court at The Hague (ICC), the world’s first permanent criminal court, issued an international arrest warrant for Russia’s president Vladimir Putin and Ms Maria Alekseyevna Lvova-Belov, a Russian politician and the Russian Commissioner for Children.
The arrest warrant alleges that both are responsible for war crimes, namely the “deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.” Such acts qualify as war crimes under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the ICC’s Statute, the Rome Statute of the International Criminal Court.
This development is significant in terms of its potential legal and diplomatic consequences, but also in terms of what motivated Ukraine, as a non-state party to the ICC, to accept the court’s jurisdiction and allow for any investigation of crimes committed – even by the Ukrainian military.
Consequences of the ICC arrest warrant
The consequences of the ICC issuing an arrest warrant are far reaching. Putin has essentially become an internationally sought-after war criminal. This means that any association with him will have become internationally suspect.
Consequently, Putin faces arrest if he sets foot in one of the 123 signatory states to the ICC, 33 of which are African states and 19 from the Asia-Pacific. The US, Russia, and China are not state parties to the Statute (despite being permanent UN Security Council members), and nor is India.
State parties are obliged under Article 86 of the Rome Statute to execute the arrest as their duty to cooperate fully with the court. Non state parties are encouraged to do so even though not obliged, and have done so in the past.
China’s President Xi Jinping decided to meet with Putin in Moscow on Tuesday despite a potential international backlash. This is in line with past examples where China’s leaders showed overall reservation towards the ICC and its jurisdiction. The former President of Sudan, Al Bashir, was invited to China in 2015 despite an open ICC arrest warrant, ongoing since 2010. Before this background we should not forget that the US, having withdrawn its initial signature, is now also a non-state party to the Statute and has been active in opposing the court, and continues to do so.
Putin is invited to attend the BRICS summit in South Africa in August this year, followed by the G20 summit in India in November. There hasn’t been a confirmation from the Kremlin yet if Putin will attend. The visit to South Africa could place the government there under President Cyril Ramaphosa on a sticky wicket. Being a signatory to the Statute, its government would have to execute the arrest warrant. Failure to act would be a repeat of the 2015 Al Bashir incident where South Africa, under then President Jacob Zuma, refused to arrest Al Bashir who was subject to an ICC arrest warrant at that time. This failure to comply with its obligations with the ICC led to domestic and international condemnation, including legal proceedings finding against the government of that time. A spokesperson for South Africa’s government commented that the country was aware of its obligations, indicating that perhaps a diplomatic solution was in the interest of the government.
South Africa’s public reiteration of their friendship with Russia (despite being neutral in respect to the Ukraine – Russia war), is not in an easy position. Whether Putin attends such meetings will be under public scrutiny and potentially damaging for any host country
ICC’s jurisdiction and lawfare
In a forward looking move by Ukraine in 2014, the ICC was invited to extend its jurisdiction for prosecuting alleged crimes (with the exception of the crime of aggression) committed on its territory, backdating to November 2013. The bloody Maidan uprising (Euromaidan) began in November 2013 and culminated in Ukraine’s Revolution of Dignity of February 2014, ending with the disposal of the Kremlin-friendly Viktor Yanukovych who fled to Russia. The seizing of Crimea in March 2014, followed by the illegal referendum and annexation, eventually led to the beginning of the Ukrainian-Russian conflict, which broke into full hostilities in February 2022.
Fully aware of the potential for Russia’s evolving aggression, Ukraine’s government made two declarations in April 2014 and September 2015 pursuant to Article 12 (3) of the Rome Statute – accepting the jurisdiction of the court over crimes committed “in the territory of Ukraine since 20 February 2014.” Since this period, but particularly after 20 February 2022, thirty eight state parties to the ICC, including Australia, requested the referral of the evolving situation in Ukraine to the court’s prosecutor following his earlier intention of 28 February 2022 to open a formal enquiry. The issuing of the arrest warrants is the climax of these developments.
Lawfare is the “use or abuse of the rule of law to achieve political objectives.” Often part of a state’s “grey zone” and/ or “hybrid warfare” approach to achieving strategic objectives, it materialises mostly in the form of the manipulation of international law to undermine international legal comity. The leading states under such forms of warfare are Russia and China – states unfriendly to existing international laws and norms. It can however also be applied by democratic states to defend international law and comity, with the US employment of Human Rights and Anti-terrorism litigation as good examples.
Lawfare has been used effectively by Russia against Ukraine as part of its wider Hybrid Warfare approach, combining lethal and non-lethal measures against the country since 2014. Ukraine soon after adopted its own unified lawfare approach against Russia along various fields of international law. It successfully leveraged international investment law to hold Russia financially liable for damages arising since 2014. It also used Human Rights Law to bring cases against Russia before the European Court of Human Rights (ECtHR). Kiev used International Law, including International Criminal Law and International Human Rights law, for applications to the International Court of Justice (ICJ) and the two Article 12 (3) declarations to the ICC.
Some of these examples were successful, and some less so, due to the refusal of Russia to comply with its legal obligations to honour the findings of the respective courts. What Ukraine has achieved by its judication of Russian aggression since 2014, and before five international legal forums, is to condemn Russia to the point that the country has become viewed as “pariah state,” isolating it internationally and enabling the present Western military containment.
Ukraine is fighting Russian aggression not only on the battlefield but also in the court of global public opinion. In the court rooms, and this week’s issuing of arrest warrants against Putin and his associate for the deportation and transfer of Ukrainian children, Ukraine is participating in a form of counter lawfare that will at the very lease serve as a public relations victory for Ukraine and its people.
Sascha-Dominik Dov Bachmann is Professor in Law & Security and Co-Convener National Security Hub (University of Canberra), University of Canberra, and a Research Fellow with the Security Institute for Governance and Leadership in Africa, Faculty of Military Science, Stellenbosch University.
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