The ICC’s arrest warrant against Vladimir Putin

The arrest warrant against the incumbent Russian President Mr. Vladimir Putin issued by the International Criminal Court ("ICC" or "Court") dated 17 March 2023 came as a surprise, but it was not totally unexpected. The ICC, the first permanent international criminal court established by the Rome Statute 1998, became active in the current Ukraine situation on 2 March 2022 when the ICC Prosecutor Karim Khan KC declared the initiation of its investigation over the same.

The ICC derived its jurisdiction over the Ukrainian situation – a non-party state to the Rome Statute – following the Ukrainian declaration under article 12(3) of the Rome Statute accepting the ICC's jurisdiction on an ad hoc basis and state-party referrals of 43 states.

The contents of the arrest warrant demand some attention. In this arrest warrant, the ICC indicted Putin for the war crimes of unlawful deportation of children, and that of unlawful transfer of children from occupied areas of Ukraine to the Russian Federation under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute, respectively.

There are three issues to discuss. First, the commission of the alleged crimes in question commenced in the Ukrainian territory but was completed in the Russian territory. Hence, the ICC has clear jurisdiction over those alleged crimes under article 12(2)(a) of the Rome Statute, and Russia's status as a non-party State to the Rome Statute has no bearing with its jurisdiction.

Second, the war crimes of unlawful deportation of children, and unlawful transfer of children are not the most horrendous crimes allegedly committed in the Ukraine situation. And the same can be categorised as genocide and crimes against humanity. It is pertinent to note that the Independent International Commission of Inquiry on Ukraine established by the UN Human Rights Council released its first report on 16 March 2023, where it recorded several violations of international law, including "forced transfers and deportations of children" (§§95-102). The reports of the UN Commissions of Inquiry maintain certain evidentiary standards. Previously, the ICC accepted those reports as evidence, especially in the Bangladesh/Myanmar situation. Besides, it is technically less complex to prove deportation or transfer of population in the context of an international armed conflict, which has been indicated by the ICC Prosecutor in an interview given on CNN.

Finally, Putin has been indicted for both his individual criminal responsibility (article 25) and his command responsibility (article 28). It implies that he bears responsibility for committing the alleged crimes individually and for failing to control his subordinates who allegedly committed those crimes. Though the ICC has dealt with several categories of individual criminal responsibility, it will be dealing with command responsibility for the first time. Notably, the ICC has issued an arrest warrant against a sitting head of state of a permanent member of the UN Security Council. This should be seen beyond symbolism.

Given that the ICC does not have any permanent police force, it depends on state parties' cooperation to arrest the accused. The state parties to the Rome Statute have a general obligation to cooperate with the ICC in respect of the arrest and transfer of the accused. The plain reading of the Rome Statute indicates that 123 states, including Bangladesh, have the obligation to arrest Putin and transfer him to the ICC. However, the arrest warrant against former Sudanese President Omar Al-Bashir attracted several attempts of the ICC to clarify the extent of such obligation to cooperate, given that the sitting head of state enjoys immunity from jurisdiction in international law. The jurisprudence developed by the ICC is not very consistent and well-appreciated by states. Presumably, the arrest warrant against Putin will revive this debate. At the same time, this concern will probably reduce Putin's diplomatic capacity in the coming days.

The Rome Statute does not allow trial in absentia. Consequently, ICC's proceedings related to Putin cannot advance without Putin's presence at the Court. But there is a non-legal perspective to assess the impact of an arrest warrant. Earlier, the arrest warrant issued by the ICC against Lord Resistance Army leaders in respect of the Northern Uganda Situation, or the arrest warrant issued by the ICTY against Radovan Karadžić in respect of the conflict in the former Yugoslavia changed the intensity of the situations. Though it will be premature to comment on the same, their possible impacts cannot be completely ruled out.

At this stage, it will be injudicious to predict whether Putin's future is vacillating towards Al-Bashir or Karadžić. But it is unquestionably evident that Putin's arrest warrant came with the strength of international law and international organisation. At the same time, this arrest warrant is a reminder for the ICC itself which is also investigating different situations involving powerful states. For example, the ICC has a moral obligation to reconsider the Rohingya situation and explore the possibility of issuing arrest warrants against potential accused individuals of committing alleged crimes against the Rohingyas among the Burmese leadership.

The writer teaches public international law at American International University- Bangladesh.