The State-centric nature of international law has always made it challenging to hold individuals accountable for internationally wrongful acts. This is particularly so for egregious unlawful acts such as genocides and war crimes. Although the need to establish a permanent International Criminal Court (ICC) to prosecute crimes such as genocide was recognised by the United Nations General Assembly (UNGA) in 1948, it wasn’t until 1998 that ICC became a reality. Unlike the International Court of Justice (ICJ) that settles disputes between States, ICC has a clear mandate to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. ICC’s recent arrest warrant against Russian President Vladimir Putin in the context of the Ukraine war needs to be seen in this light.
According to ICC, Putin is allegedly responsible for the war crime of unlawful deportation and transfer of children from occupied areas of Ukraine to Russia — under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute which created ICC — due to his position as a leader who failed to control subordinates who committed the unlawful acts. Furthermore, Putin’s role in approving the amendments to the Russian adoption laws that facilitated the quick and smooth adoption of Ukrainian children is under the scanner of the ICC prosecutor. Contrary to what many believed, Putin is not charged with the commission of genocide.
The arrest warrant holds significance for several reasons. First, there is a possibility of holding a sitting president of a country, which is a permanent member of the UN Security Council, individually and criminally responsible for a war crime. This goes beyond what Ukraine can accomplish in an ongoing dispute at ICJ where it can only possibly hold the Russian State accountable, not its leader. Second, although Russia withdrew from the Rome Statute in 2016, this hasn’t stopped ICC from issuing an arrest warrant against the head of a State. This has lessons for other world leaders who may believe that they can act with impunity when it comes to respecting international law.
The practical consequences of the warrant, however, may be a mixed bag. Now that the arrest warrant is out, all 123 ICC member countries (which does not include India) will bear the responsibility to arrest Putin whenever he is in their jurisdiction. ICC’s jurisprudence says that no head of State shall have immunity from prosecution before the court. This effectively means that if an ICC member-country arrests Putin, the country concerned will not be violating Putin’s immunity from prosecution as a head of State, since he has none vis-à-vis ICC. However, diplomatically, this is too big a risk for any country, primarily because Putin is a sitting head of State. In 2015, the Sudanese president, Omar Al-Bashir, against whom an ICC warrant was issued, travelled to South Africa but was not arrested despite South Africa being an ICC member. Subsequently, ICC declared South Africa’s actions inconsistent with its obligations under the Rome Statute. Yet, nearly a decade on, ICC is yet to get custody of Al-Bashir. The world’s eyes will be on South Africa again if Putin decides to attend the BRICS summit later in August.
Finally, the arrest warrant will give fresh impetus to the narrative of the so-called bias of ICC. In the last few years, ICC has come under scathing criticism for acting only against heads of State that hold rivalries with western powers. When it comes to the western world, the court has only taken limited actions against officials and spared the heads of State for wars in Iraq and Afghanistan.
Only time will show how effective this move is, but for now, the people of Ukraine, who are the victims of Russia’s illegal war, have received an important boost.
Prabhash Ranjan and Aman Kumar teach at the Jindal Global Law School and IFIM Law School respectivelyThe views expressed are personal