Source by the Center for Strategic and International Studies
Critical Questions by Marti Flacks
From Andrew Schwartz
Media www.rajawalisiber.com – It is now well-established in international law that there is no head of state immunity for war crimes, crimes against humanity, or genocide before international tribunals, and the Rome Statute establishing the ICC is clear on this point, specifying that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.” In fact, Putin is not the first head of state to be targeted by the ICC. In 2009, the ICC issued an arrest warrant for then-Sudanese president Omar al-Bashir for crimes committed in Darfur, and in 2011 it issued a warrant for Ivoirian president Laurent Gbagbo for crimes against humanity taking place during post-election violence in Côte d’Ivoire. However, were Putin ever to be arrested, he could be the first head of state convicted at the ICC. Despite losing power in 2019, Bashir remains in Sudanese custody, 14 years after his arrest warrant was issued, while Gbagbo was found not guilty by the ICC in 2019.
Q2: What has Putin been charged with, and why?
A2: Putin and Lvova-Belova have been charged with two war crimes under the Rome Statute for their oversight of Russian efforts to forcibly transfer Ukrainian children from Russian-occupied parts of eastern Ukraine into Russian territory. Transferring or deporting the population of an occupied territory during an international armed conflict—often done in order to weaken internal resistance and more easily maintain control of captured land—is a war crime under international law. Although not yet charged in this case, depending on the scale and intent of the transfers it could also constitute a crime against humanity and an act of genocide.
Although reports of the forcible transfer of population out of Russian-occupied territory in eastern Ukraine have surfaced since early in the war, only in the last few months has information become public detailing the full extent of these transfers and the populations most affected. A November 2022 AP investigation revealed several horror stories from families affected by the transfers, while a February 14 Yale School of Public Health report found credible evidence of the transfer of at least 6,000 unaccompanied Ukrainian children, many of whom ended up in “re-education” camps inside Russia. While the Ukrainian government has estimated that at least 16,000 people have been transferred into Russia since the war began, the targeting of children—both orphans and those separated from their parents—makes this program particularly horrifying. It is not surprising, therefore, that the prosecutor brought these charges to the court first.
There is another reason these charges came first, however. The ICC is designed to prosecute only the most senior officials for the most serious international crimes. The standard for individual criminal responsibility is—appropriately—very high: the prosecutor must demonstrate that officials were personally involved in the commission of the crime, for example by committing it themselves, ordering or soliciting it, or willfully ignoring its commission by subordinates over whom they had effective responsibility and control. While it may seem obvious that Putin is authorizing the myriad war crimes being committed in Ukraine, prosecutors must nevertheless tediously piece together the specific trail of evidence connecting him with each war crime they seek to prosecute, whether it is the torture and murder of civilians in Bucha or the bombing of a theater being used a shelter in Mariupol. This is where the intelligence and analysis of individual governments can be invaluable; without it, demonstrating the personal responsibility of senior officials far from the battlefield can be difficult or impossible.
This is also why the deportation of children is a logical place to start, with the biggest clue being Putin’s co-defendant. By her very title—commissioner for children’s rights in the Office of the President of the Russian Federation—her connection to Putin is clear, putting to rest any question about whether her work is authorized by Putin. Treasury found sufficient evidence of criminal activity to add Lvova-Belova to the U.S. sanctions list in September 2022. Commissioner Lvova-Belova has even bragged about her efforts to relocate Ukrainian children—in her words, “helping children to preserve their right to live under a peaceful sky and be happy.” In May 2022, Putin signed a law making it easier for these children to acquire Russian citizenship. These clear acknowledgments of the acts, coupled with evidence on the ground, made these charges a relatively easy call for the court.
The nature and narrow scope of these charges also explain the speed at which the court issued these arrest warrants—just weeks after the prosecutor’s submission—and why the court chose to make them public. Judges had the option—which they apparently considered—to keep the arrest warrant under seal. Doing so sometimes has advantages: potential defendants are more likely to travel to places they could be arrested if they are not aware of an outstanding warrant. Judicial processes can also be perceived as deterrents to negotiated settlements. In this case, however, given the number of children still being transferred to Russia and ongoing efforts to locate them, the court calculated there was greater value in publicizing the ongoing crime, in the hopes of deterring lower-level officials and even Russian families from being further complicit in it.
Q3: What comes next?
A3: This is far from the end of the ICC’s investigation in Ukraine. There will almost certainly be more charges forthcoming, both for senior Russian officials (military and civilian), and probably for Putin himself. News reports indicate Prosecutor Khan is already working on a submission based on the Russian tactic of targeting civilian infrastructure, including power infrastructure. The Ukrainian prosecutor has identified more than 65,000 alleged war crimes committed by Russian forces. Only a handful of these will be taken up by the ICC, but hundreds and perhaps thousands could be prosecuted by a combination of Ukrainian and European courts in the years to come.
This is also only the beginning of the current case against Putin—and it may stay that way for some time. The ICC does not try individuals in absentia, so in order for the case against him to move forward, Putin must either surrender himself to the ICC, or be arrested by a cooperating government. The ICC has no police force of its own; it relies on the national authorities of its member states and other like-minded states to arrest suspects and transfer them to the Hague. As a result, going forward, governments will face increasing pressure to arrest Putin if he travels to their territory. European governments and even the United States—despite not being an ICC member—furiously lobbied for the arrest of Sudanese president Omar al-Bashir during his travels abroad after the ICC issued a warrant for his arrest in 2009, and it is reasonable to assume they will do the same in this case.
ICC member states will be under particular political pressure, as well as a legal obligation to take action, though their track record on this is mixed at best. While some suspects have been arrested and transferred, even member states have declined to do so in cases where they did not believe it was politically expedient. South Africa famously declined to arrest al-Bashir during a visit to Johannesburg in 2015, believing African countries were being unfairly targeted by the court. The government got a slap on the wrist from both its own judiciary and the ICC, but faced no further consequences.
However, ICC member states are unlikely to see a visit from Putin in the near future. Even before the war, Putin rarely traveled to ICC member states; of his 55 public overseas trips in the last five years (not counting visits to Russian-occupied Ukrainian territory), only 20 were to ICC member states—and most of those were to Europe, where he is unlikely to be welcomed back now regardless of the ICC. Only Tajikistan and Mongolia—the only countries in Central Asia to join the ICC—are likely to face a potentially difficult decision in this regard: Putin has in particular visited Tajikistan three times in the last five years, including on his first foreign trip since the war began. Putin even declined to participate in the 2022 G20 leaders meeting in Indonesia or the Asia-Pacific Economic Cooperation summit in Thailand, although neither are ICC members.
In addition to the diplomatic scrambles likely to ensue when Putin does eventually travel abroad, the arrest warrant will put additional pressure on the United States to decide what assistance it will provide to the court. U.S. engagement with the ICC since its founding in 1998 has ranged from benign neglect to outright hostility, including imposing sanctions on the former chief prosecutor and passing a law authorizing the use of military force to free any U.S. citizen arrested by the court. But the conflict in Ukraine has been a game changer for attitudes toward the ICC in Congress. In late 2022, Congress softened laws limiting U.S. cooperation with the court in the case of Ukraine, and both Republican and Democratic leaders have stated their support for the ICC’s investigation there. Ironically, it is now the Biden administration that is holding up cooperation, as the Pentagon argues against sharing intelligence about Russian war crimes in Ukraine for fear it could set a precedent for future cases against U.S. citizens. As justice ministers from around the world meet in London this week to build support for the ICC’s investigation in Ukraine, the pressure will be on United States to make a final decision.
Marti Flacks is the Khosravi Chair in Principled Internationalism and director of the Human Rights Initiative at the Center for Strategic and International Studies in Washington, D.C.