top of page
helenhall5
Mar 29, 20235 min read

International Criminal Court issues arrest warrant for Vladimir Putin

Mark Chadwick, Principal Lecturer


On 17th March the International Criminal Court (or “ICC”) issued arrest warrants for Vladimir Putin (President of Russia) and Maria Lvova-Belova (Russia’s Commissioner for Children's Rights). The announcement is the latest development in almost a decade of the ICC’s involvement in Ukraine, with the Office of the Prosecutor having been actively investigating alleged since March 2014, encompassing the Russian annexation of Crimea and events that have transpired since. The implications of the decision to issue a warrant against the President of Russia – a nuclear State and one which holds a permanent seat on the United Nations Security Council – are seismic, with no hesitation on the part of the Prosecutor to aim “straight for the top.”


President Putin and Ms Lvova-Belova are charged with two war crimes, both based on the same pattern of underlying conduct, namely the deportation of civilians from areas of Ukraine under Russian occupation. The specific crimes are, firstly, the “unlawful deportation [of persons]”, and secondly “the deportation or transfer of […] parts of the population of the occupied territory within or outside this territory.” In both cases, the stated focus of the charge is on the unlawful deportation of children, a phenomenon that has been widely reported in the months since Russia’s full-scale invasion. Given the broad array of potential offences that the Prosecutor could have chosen to focus on, the decision to focus specifically on the alleged deportation of children (a crime that, according to a UN Report, has a “profound implication on a child’s identity”) serves to underscore the severity with which the offence is regarded and may well also indicate a strategic focus on the crimes to which President Putin can be most readily connected with available evidence.


In terms of President Putin’s own involvement in the alleged crimes, he is alleged to have either “committed the acts directly, jointly with others and/or through others” or to be otherwise responsible “for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission”. The first option, to be clear, does not imply that President Putin carried out the deportations himself. Rather, the charge relies on a principle of “indirect perpetration” whereby a high-ranking superior (a president, for instance) carries out a crime through subordinates, via a rigorously organised command structure. The second option, the principle of “command responsibility”, imposes liability by omission, in criminalising the actions of a superior where they fail to take reasonable and necessary action to prevent or punish criminal conduct that they knew (or should have known) was being carried out by subordinates. Critically, the Prosecutor would not need to prove that the president ordered or intended the deportations as such; rather, it would be sufficient to demonstrate that he did not act to prevent the removals or to punish those who had directly carried them out. Although we have no further insights, as yet, into the evidence directly linking President Putin to the crimes alleged, the approach usefully keeps open a range of options. Ms Lvova-Belova has been charged on the same basis (indeed, reports suggest that she “adopted” a 15-year child from a family in Mariupol).


There is, then, the question of how an international court can issue arrest warrants for the head of a State that is not a party to it. That the ICC may claim jurisdiction over crimes committed in Ukraine is uncontroversial. Given Ukraine accepted the jurisdiction of the ICC in 2014 (albeit never having become a formal party to the Court), the ICC effectively acts as an extension of Ukraine’s own court system and may exercise territorial jurisdiction over any conduct occurring in Ukraine. This would apply to the alleged deportations, which would have commenced in Ukraine and culminated in Russia. Given that part of the offence would have taken place in Ukraine, ICC jurisdiction will follow.


More controversial, though, is the question of whether the ICC is entitled to waive any diplomatic immunities to which President Putin might expect to be entitled. Historically it has been well accepted under international law that heads of State and other high-ranking diplomats may not be prosecuted for acts carried out in an official capacity (so-called “functional immunity”), nor could they be prosecuted whilst they remain in post (“personal immunity”). These principles have, however, been gradually eroded. In the case of “functional immunity”, both international and domestic courts have increasingly held that such a bar to prosecution ceases to apply in respect of international crimes, given these can never be properly considered to be official acts of State. The picture is less clear in the case of personal immunities, though a 2019 ruling from the ICC Appeals Chamber in the context of Omar al-Bashir, then the president of Sudan (and similarly the subject of an ICC arrest warrant), held that there was no rule of international law recognising Head of State immunity before international courts, given that, inter alia, “international courts act on behalf of the international community as a whole.” The ruling, somewhat controversially, purports to remove immunity from any serving head of state, for the purpose of prosecution before the ICC. As such, the issuance of a warrant against President Putin creates an obligation on ICC Member States to arrest him if he were to set foot on their territory. Whether States would indeed execute the warrants remains to be seen.


The warrants against President Putin and Ms Lvova-Belova should not be easily dismissed, nor should they be viewed as being merely “symbolic”. History has showed us time and time again that even leaders who might have seemed “untouchable” at the time have had their day in court. The experiences of Charles Taylor, Slobodan Milošević, Hissène Habré and others all bear testament to this. The hurdles in this case (the political ones, especially) might seem even more significant in this case, but the magnitude of this first step towards a courtroom process should not be underestimated.


Related Readings








111 views0 comments

コメント

bottom of page