On the 17th of March, 2023, the International Criminal Court (ICC or the ‘Court’) issued an arrest warrant against Russian president, Vladimir Putin, and the Russian Commissioner for Children’s Rights, Maria Lvova-Belova, for the crime of the unlawful transfer of Ukrainian children into Russia. The warrant sets a powerful precedent for accountability in the international community; wherein violations against international law and the international system are not without consequences. However, concrete enforcement for this warrant is complicated by several factors, including Russia’s consistent failure to recognize the authority and jurisdiction of the ICC.

Early on after Russia’s invasion of Ukraine, law professor Philippe Sands recommended an ad hoc criminal tribunal to prosecute Russian officials for the crime of aggression. Ever since, politicians, legal scholars, world leaders, and human rights advocates have echoed and amplified the pressure for a criminal tribunal to bring justice. However, in their search for an answer, the carefully combined efforts of expert, legal, and non-specialised opinions continued oscillating between charges of aggression and war crimes, revealing the complications associated with criminalizing a Permanent Member of the United Nations Security Council (UNSC). The lengthy discussion with its multiple facets for an actual charge and arrest warrant, begs the question: is the international criminal system well-equipped to put Putin behind bars, or is this a much harder endeavour than anticipated?

The Rome Statute and the crime of aggression

The Rome Statute, which entered into force in 2002, contemplates four main crimes: war crimes, genocide, crimes against humanity, and the crime of aggression. While the first three crimes are widely accepted and integral to the Statute’s mandate, the crime of aggression includes caveats that render its application difficult. The ICC is limited by temporal and territorial jurisdiction, and neither Russia nor Ukraine are signatory members to the Rome Statute. Ukraine, however, has made two statements in 2014 and 2015 recognizing the ICC jurisdiction over Ukrainian territory. However, the crime of aggression, as established during the 2010 Kampala Amendments to the Rome Statute, can only be prosecuted against nationals of signatory states. This means that the court can prosecute Russian nationals for violations committed in Ukrainian territory, except for the crime of aggression. This jurisdiction could be bypassed if, for instance, the UNSC, recommended a case to the ICC. However, with Russia as a permanent member of the Council, they would automatically veto a resolution containing such a proposition against them.

Echoing professor Sand, a special tribunal has been suggested to overcome the limitations of the ICC. For instance, a United Nations General Assembly (UNGA) resolution could be interpreted broadly to call for a special tribunal against Russia. However, stretching the UNGA’s limited mandate and its powers risks disturbing the current international institutional order. Notably, the ICC prosecutor Karim Ahmad Khan has expressed concern that sidelining the ICC in favor of an ad hoc tribunal would erode the Court’s legitimacy. Since the ICC acts as a permanent tribunal for international crimes, the creation of a new body would suggest the Court’s inability to effectively fulfill its role in the international system.

War crimes and the illegal transfer of children

War crimes surfaced as a new alternative to prosecute Russian officials. However, until recently, whenever leaders such as Joe Biden or Ursula von der Leyen discussed Russian war crimes in Ukraine, it was unclear which war crimes they referred to. Reputed human rights organizations, such as Human Rights Watch and Amnesty International have reported war crimes by both sides, yet pressure to prosecute has mostly unequivocally weighed against Russia, the aggressor. The arrest warrant is the first concrete step based on concrete charges: the illegal transfer of children from Ukraine into Russia.

The forcible transfer of persons (children) is a war crime under Article 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. Ukraine claims that at least 16,000 Ukrainian children were abducted and put in foster homes in Russian territory, which violates Russian law since these adoptions occur without consent from the home country. Russia, on its side, declares that these transfers occurred to protect children from the effects of the war. Many experts claim that the fashion in which these children were abducted from Ukraine and resettled in Russia, including the issuance of Russian citizenship, suggests the Russian government intends to resettle them permanently in Russian territory. Nonetheless, however substantive the charges might be, the issue of jurisdiction challenges the applicability of these charges. 

An arrest warrant with an empty courtroom

For Putin and Lvova-Belova to be arrested and prosecuted, they have to be handed voluntarily by Russian authorities, which is unlikely. If Putin travels to any of the 123 state parties to the Rome Statute, they have the obligation to arrest them and hand them in. However, that they ought to do it does not mean they will do it, particularly countries sympathetic to the Kremlin.

An in absentia trial, although possible, could delegitimize the international system, and the credibility of its institutions. Afterall, a sentence delivered to an empty chair with the defendants roaming free would be an embarrassment to most courts.

So, was this all for nothing?

Although at first sight the arrest warrant by the ICC against Russian officials would appear as a win for the West and the rules-based international system, upon closer examination, the procedure seems not as straightforward in practice. Without going all-in, the West and the ICC have played their cards in a move that sent a strong signal to the world, but that has yet to prove to pay-off eventually. One thing is clear, for the remaining time of this illegal war, the playfield of Putin has become much narrower, and this will impose important constraints on the Russian leader’s next movements.

Edited by Sophie Gunyon.

The opinions expressed in this article are solely those of the author and they do not reflect the position of the McGill Journal of Political Studies or the Political Science Students’ Association.

Featured image obtained via Flickr.