In March 2023, the International Criminal Court (ICC) issued arrest warrants for Russian Pres. Vladimir Putin and his commissioner for children’s rights Maria Lvova-Belova for suspected war crimes in Ukraine. The two Russians are wanted for the unlawful deportation and transfer of Ukrainian children from Ukraine to Russia.
The court’s decision was met with praise, skepticism, and criticism. Ukrainian president Volodymyr Zelensky called the decision “historic” and “a fundamental decision of international justice.”
Agnès Callamard, Amnesty International’s secretary general, described the decision as “limited,” saying it “doesn’t reflect the plethora of war crimes and crimes against humanity for which the Russian leadership is potentially responsible.”
The United States Institute for Peace, a nonpartisan research institute, also pointed out a major deficiency of the court: The ICC cannot pursue Putin or any members of his government or military for aggression – “the use of armed force by a State against the sovereignty, integrity or independence of another State” – which is at the heart of the war with Ukraine.
Trial or not, this matters
Analysts recognize that Putin may not stand trial. For a trial to actually take place, Putin would need to be arrested and transferred to The Hague, as the ICC does not conduct trials of individuals in absentia. Nonetheless, court watchers argue that the arrest warrant is powerful, if primarily as a symbol. The court has confirmed Putin’s pariah status on the world stage.
The decision to charge Putin is also important for the ICC itself and for perceptions of its legitimacy. For years, countries in the Global South, particularly in Africa, have accused the court of being biased against them, as Oumar Ba discusses in Foreign Affairs. (I plan to weigh in on this debate in a future piece.)
Human rights advocates and international law scholars have also accused the court of capitulating to powerful countries. As an example, in 2017, Fatou Bensouda, the ICC’s chief prosecutor, requested authorization to investigate allegations of atrocities in Afghanistan, including possible war crimes by U.S. military and intelligence personnel. But ICC judges in the pre-trial chamber rejected her request, sparking criticism from around the globe.
The Trump administration had revoked U.S. visas and threatened financial sanctions for ICC staff, so the judges’ decision not to grant Bensouda the authority to carry out the investigation (which was also set to investigate alleged abuses by the Taliban) led many analysts to suspect they were bending to U.S. interests and forsaking victims of the alleged crimes.
To be clear, there was a reasonable basis to believe that U.S. personnel had committed war crimes, including torture of detainees. Because Afghanistan has been a member of the court since 2003, any of the “big three” international crimes – war crimes, crimes against humanity, and genocide – whether committed by domestic organizations like the Taliban and the Afghan National Security Forces, or international players like the United States, are liable to ICC scrutiny. Given these parameters, there was no reason to let the United States off the hook without further investigation.
Is the ICC now willing to pursue cases against the powerful?
The ICC appeals chamber later overturned the pre-trial chamber’s decision in March 2020, allowing Bensouda to launch her investigation. U.S. Secretary of State Mike Pompeo responded by accusing the court of being political and biased. But the ICC does not unfairly target the U.S. military, as Daniel Krcmaric’s recent research in the American Political Science Review shows. The ICC is not more likely to open an investigation in a country with a U.S. troop presence. Moreover, Americans are generally supportive of the court, as some of my own research in International Studies Quarterly shows.
After Bensouda’s nine-year term as chief prosecutor ended in June 2021, her successor Karim Khan took office. Khan reversed course, and made the controversial decision to “deprioritize” U.S. personnel and the Afghan National Security Forces, which had worked closely with U.S. forces for years. President Joe Biden had reversed Trump’s ICC sanctions early into his term, so Khan’s decision was puzzling – unless he, too, was concerned about a possible fight with the U.S. government if he issued arrest warrants for U.S. soldiers and intelligence operatives. U.S. opposition to, and even interference with, ICC jurisdiction over Americans has been supported on a bipartisan basis in the U.S. for decades.
With the U.S. side of the Afghanistan investigation halted, the ICC gave the impression that it was only willing and able to pursue less-powerful individuals and countries – until this year.
The decision to issue an arrest warrant for Putin for war crimes is significant. Putin is the only sitting head of state of a global superpower ever to be formally charged of a crime by an international court. The next closest example would be Karl Dönitz, who succeeded Adolf Hitler as head of state in Germany after Hitler’s death by suicide in the last days of World War II. The Nuremberg tribunal, the first modern international criminal court, found Dönitz guilty of war crimes and crimes against peace, and sentenced him to ten years in prison.
The ICC has accused other sitting heads of state of committing atrocities – Moammar Gaddafi of Libya, Uhuru Kenyatta of Kenya, and Omar al-Bashir of Sudan – but none have been held accountable. The case against Gaddafi was terminated after he was killed in office, charges against Kenyatta were withdrawn due to insufficient evidence, and al-Bashir is still at large.
Could the ICC add further charges?
The ICC’s interest in trying Putin is not uncontroversial, to be sure. The charges so far are limited – but that does not mean the ICC will not add further charges. The case also raises questions about whether the court may only pursue crimes in some powerful countries. In other words, is the court going after Putin because Western powers like the United Kingdom and United States want it to? Not quite.
Support for the ICC’s investigation into the situation in Ukraine is widespread. Countries large and small, Western and non-Western, recommended Khan launch the investigation. And because they support the court’s work, many countries are providing funds, experts, and cooperation in evidence gathering – resources the court needs if it stands a chance of holding Putin accountable.
But is Putin afraid of the ICC? While the court has a shaky record, especially where national leaders are concerned, Putin does seem concerned. The Russian government has put several members of the court on a wanted list, including the prosecutor, two judges, and the ICC president.
Not only does Putin seem worried; Russian political and economic partners do, too. For instance, South African President Cyril Ramaphosa and Putin decided the Russian leader would not attend an August meeting of the BRICS states (Brazil, Russia, India, China, and South Africa), due to South Africa’s obligation as an ICC member to arrest and transfer ICC fugitives, the designation that comes with the issue of an ICC arrest warrant.
Whether or not South Africa ultimately would have done so, especially under threat of a declaration of war from the Kremlin, is not for certain. And South Africa has declined to meet its ICC obligations in the past, for example by failing to arrest al-Bashir during a visit to South Africa in 2015. Nonetheless, limits on Putin’s movements suggest he is at least somewhat concerned about what the ICC could do.
Feature image: International Criminal Court at The Hague (UN Photo/Rick Bajornas, cc: 2.0.)