By Dr. Ilan Fuchs
Faculty Member, Legal Studies
On March 17, the International Criminal Court (ICC) issued arrest warrants for two prominent Russian officials: Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, the Commissioner for Children’s Rights. The warrants were issued in context of the ongoing situation in Ukraine.
These warrants represent uncharted waters, not only because it is just the third time a head of state has been targeted by the ICC, but because it targets the leader of a world power who openly challenges Western supremacy in the global arena of international relations.
Both individuals were charged with the crime of unlawful deportation of population—stemming from accusations that children from areas in Ukraine were taken by the Russian Army. The Court issued a statement outlining the legal basis for the warrants:
“The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr. Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).
Ms. Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, is allegedly 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.”
What Is the International Criminal Court?
The ICC, which is located in the Hauge in the Netherlands, was established after the signing of the Rome Statute in 1998. The treaty, which has 128 sections, established a court to deal with individuals who have committed acts such as genocide, war crimes, crimes against humanity and other crimes that can be added by the member states.
The treaty outlines institutional, procedural and substantiative rules. The ICC consists of a prosecutor who can begin an investigation, a pretrial chamber to review the decisions of the prosecutor, a tribunal and an appellate tribunal.
To begin a criminal investigation, the issue needs to stem from an event in the territory of a member state or a nonmember state that agreed to the authority of the court. In this case, Ukraine gave its permission to initiate the investigation. It’s worth noting that Russia was once a member of the Rome Statute, but withdrew in 2016.
What Is the Significance of These Arrest Warrants?
The move by the ICC prosecutor, Karim Khan, dives into uncharted waters. While the ICC has issued warrants against two other heads of state, Omar El-Bashir, the president of Sudan, and Muammar Gaddafi, the leader of Libya, it is not the same. Both these leaders were in pariah states that were criticized for multiple mass atrocities over the course of many years.
The Russian arrest warrants are different. Russia is a world power with a large army (albeit failing in Ukraine) that has access to heavy industry, natural resources, and a space program. In a nutshell, the ICC prosecutor took on a regime with almost unparalleled resources and a history of attacking opposition. Issuing the warrants was a bold move and one that, without a doubt, is likely to illicit a powerful Russian response.
What Will be the Effect of These Warrants?
It is hard to speculate the Russian response to these warrants, but it is safe to assume that President Putin will think twice before travelling outside Russia. If Putin does travel, he will most likely choose to visit countries allied with Russia that will not work with the ICC, which is a relatively short list of countries.
Former Russian President Medvedev, a Putin loyalist, speculated that an arrest of Putin would be a declaration of war on Russia, according to an article in Reuters. Medvedev said:
“Let’s imagine – obviously this situation which will never be realized – but nevertheless let’s imagine that it was realized: The current head of the nuclear state went to a territory, say Germany, and was arrested, What would that be? It would be a declaration of war on the Russian Federation,” he added. “And in that case, all our assets – all our missiles et cetera – would fly to the Bundestag, to the Chancellor’s office.”
In response, the ICC issued a statement that it regrets these “threats” over the warrant.
Hungary was quick to clarify it will not act on this warrant, according to ABC News. Gergely Gulyas, chief of staff to Hungarian Prime Minister Viktor Orban, said during a news conference in Budapest that Hungarian authorities cannot act on this warrant since the Rome Statute was not integrated into the Hungarian legal system. This is an important statement since Hungary is a member state. “I think these decisions are not the most fortunate because they lead toward escalation and not toward peace,” said Gulyas.
The Hungarian position is not surprising. No one wants to take on Russia unless they have to, which would explain Polish policy on the issue. Poland has a long history with Russian expansionist policies spanning centuries. They were stuck between a rock and a hard place and forced to put their lot with Ukraine for fear of Russia going for Poland next, as it did in the past.
The question is: Would countries that are signatories of the Rome Statute act on this warrant if given the chance? For most countries, this is well outside their comfort zone. To take into custody Russian officials would mean opening a front with a force armed with nuclear weapons and a deadly intelligence apparatus. It is hard to believe no one in the ICC took that into account when deciding to take this step across the Rubicon. In other words, if these warrants are ever enforced, it would most likely happen after a coup in Moscow. It is the dream in many western capitals that a group in the Kremlin will solve the problem and oust Putin.