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Why the ICC’s Aggressive New Approach May Embolden Support for Vladimir Putin

27 Mar 2023
By Dr Matt Killingsworth
President Cyril Ramaphosa during plenary session at the Russia-Africa Summit held in Sochi, Russian. Source: Government of South Africa/

African nations are watching Russia’s war in Ukraine closely. While they may not agree with Vladimir Putin’s rationale for the invasion, their stance on the International Criminal Court (ICC) puts them decidedly against Putin’s arrest. 

At the end of last week, the International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir Putin and Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Maria Lvova-Belova. They are both accused of being responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.

These are the first of what will most likely be numerous arrest warrants issued by the ICC in relation to the Ukraine situation. They are, nonetheless, significant for several reasons.

First, the ICC has often been accused of a “softly-softly” approach, and of being overly concerned about political fallout from its decisions. In issuing an arrest warrant for the Russian head of state, the ICC chose the highest possible profile indictee, deliberately choosing to ignore the inevitable political fallout.

Second, the Court has also been accused of impotency, especially in its dealings with powerful countries. In indicting the head of state of a permanent member of the UN Security Council, the Court has demonstrated that the optimism about its potential ability to hold great powers to account might not have been in vain.

And third, the Ukraine conflict, more than any other recent conflict, has been framed through reference to international law. Much has been written about Russia’s illegal invasion of Ukraine, and in turn the frustrations with prosecting Russian leaders for the crime of aggression. And similarly, the UN and various INGOs have highlighted the alleged atrocity crimes being committed, mostly by Russian armed forces. The issuing of arrest warrants is the logical next step in the juridification of this conflict.

Some caution, however, should be taken with regards to these arrest warrants.

The issuing of arrest warrants will certainly not be a catalyst for peace in Ukraine. Indeed, one of the consistent criticisms of international courts and tribunals is that the issuing of arrest warrants not only fails to deter violent acts (see the the International Criminal Tribunal for the former Yugoslavia and Slobodan Milošević’s action in Kosovo), it can often serve as a hindrance to peace negotiations (see the ICC and the Lord’s Resistance Army).

As is well known, Russia is not a signatory to the Rome Statute and is thus under no obligation to cooperate with the Court. As such, it is unlikely that we will see either Putin or Lvova-Belova in The Hague any time soon.

The 123 states who are members of the Court, however, do have obligations in respects to cooperating with the Court. In particular, states party to the Rome Statute are obliged to arrest Putin were he to visit those countries. In theory, the arrest warrant will limit Putin’s ability to travel, which in and of itself is significant for a leader who has enjoyed projecting Russian power through international travel.

But an issue that the ICC would be loathe to revisit has already reared its head. South Africa, a signatory to the Rome Statute, has issued an invitation to Putin to attend the 15th BRICS conference in August this year. In 2015, South Africa famously refused to arrest then president of Sudan, Omar Al-Bashir, when he visited Johannesburg for an African Union summit. The South African government argued that, as a sitting head of state, Bashir was immune from arrest. South Africa’s highest court subsequently ruled that the failure to arrest Bashir was unlawful under South African law.

The tension between obligations of signatories to the Rome Statute and customary international law as it relates to immunity for sitting heads of state have been most obvious in Africa. There has developed a belief among a vocal group of African Union (AU) members that the ICC has disproportionality focused its efforts on African heads of state (Al-Basir and Kenya’s William Ruto, specifically), while ignoring similar, if not worse situations by “western” leaders. Indeed, the AU maintains that “no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.”

Of arguably greater concern is the correlation between those African countries who support immunity for sitting heads of state and those who either abstained or voted against condemning Russia’s invasion of Ukraine in the most recent UN General Assembly vote. Thus, an unintended consequence of the warrants might be to strengthen Putin’s support among African countries, which is an undesirable outcome when trying to further ostracise the Russian regime.

There are also further challenges for the Court arising from the issuing of these arrest warrants.

Having taken the bold step to issue an arrest warrant for a sitting head of state of a P5 country, there will be pressure on the Prosecutor to be more proactive in (a) pursuing situations that involve powerful states directly (the US in Afghanistan, Poland, and Romania), or the proxies of powerful states (Israel in Palestine), and (b) exploring possible indictments of other sitting heads of state (Benjamin Netanyahu, for example).

The combination of the magnitude of the crimes, and, through presidential decrees, evidence of Putin’s direct involvement, means the Court’s decision to pursue the crimes in the current arrest warrants are entirely justified. There will also be pressure for further arrest warrants, and further charges against Putin, for more high profile war crimes, such as intentionally directing attacks against civilians and civilian objects (for example), and possibly more high profile crimes, such as genocide and crimes against humanity.

The arrest warrants issued by the ICC are certainly no panacea with regards to justice as it relates to the illegal invasion of Ukraine, and the ongoing illegal acts taking place in Ukraine. But they are an important tool that will make a difference in ongoing efforts to erode impunity and hold those most responsible for the multitude of crimes being committed to account.

Dr Matt Killingsworth is a senior lecturer in International Relations at the University of Tasmania. He is co-editor of Violence and the State (Manchester University Press, 2015) and the forthcoming Civility, Barbarism and the Evolution of International Humanitarian Law: Who Do the Laws of War Protect? (Cambridge University Press). His current research focuses on the evolution of the modern laws of war and the International Criminal Court. He is member of the Tasmanian Red Cross International Humanitarian Law Committee and a regular contributor to local and national media. He tweets at: @mevanworth

This article is published under a Creative Commons License and may be republished with attribution.