South Africa recognises the ICC, so will be expected to arrest the Russian President on arrival at the BRICS summit.
Just days after details of the abduction of Ukrainian children to Russia were published by this newspaper, the International Criminal Court issued an arrest warrant for President Vladimir Putin and Maria Lvova-Belova, the country’s commissioner for children’s rights. Both are accused of responsibility for illegally deporting children from occupied areas of Ukraine, which is a war crime over which the court has jurisdiction. The warrants had initially been secret, but the court said it was making them public to raise awareness of the continuing crimes.
This was the first time the global court, born in 2002 out of a treaty called the Rome Statute, has issued a warrant against the leader of one of the five members of the UN Security Council. In a statement issued by the ICC: “Putin is allegedly responsible for the war crime of unlawful deportation of children and that of unlawful transfer of children from occupied areas of Ukraine to the Russian Federation.”
The Kremlin insists that the children taken to Russia are orphans, and therefore have no parents or guardians to look after them—a claim hotly disputed by the thousands of parents desperately trying to find and recover the children stolen from them. But whether or not the children have parents, raising the children of war in another country or culture can be a marker of genocide, an attempt to erase the very identity of an enemy nation. Prosecutors say that as President Putin has expressly supported the adoption, the charge can be tied directly to him. But even Russian law prohibits the adoption of foreign children without the consent of the home country, so Vladimir Putin appears to have broken his own country’s law as well as international law.
The exact number of Ukrainian children taken to Russia is difficult to estimate, but last week Ukraine’s human rights chief, Dmytro Lubinets, said that based on data from the country’s National Information Bureau, 16,226 children were deported. Of those, Ukraine has managed to bring back 308.
Although Russia signed the Rome statute in 2000, it was never ratified by Moscow and it finally withdrew its signature in 2016. In fact, dozens of countries are not ICC members, including China, India and the US. Other notable absences are Israel, Qatar, Iraq and Libya.
So what does the ICC warrant mean?
The purpose of the ICC is to prosecute anyone responsible for war crimes, genocide and crimes against humanity. The court acts whenever a government with or without a judicial system is unwilling or unable to prosecute criminals in their countries. Unlike other organisations, such as the International Court of Justice, the ICC can prosecute individuals, which probably explains why some big countries such as the US, China, Russia and India aren’t party to the treaty.
“The fact that Russia doesn’t recognise the ICC is completely irrelevant”, insists ICC President Piotr Hofmanski. In an interview with Al Jazeera last week, Hofmanski said that according to the ICC statute, which has 123 state parties, two thirds of the whole international community, the court had jurisdiction over crimes committed in a state party or a state that has accepted its jurisdiction. “Forty-three states have referred the situation in Ukraine to the court”, said Hofmanski, “which means that they have formally triggered our jurisdiction.” Ukraine has accepted the ICC twice—in 2014 and then again in 2015, so the court has jurisdiction over crimes committed against anyone on the territory of Ukraine from November 2013 onwards, regardless of nationality of the alleged perpetrators.
So if President Putin travels outside Russia, could he be arrested? “Yes”, said Hofmanski. “According to the statute, all state parties have the legal obligation to cooperate fully with the court, and arrest him in respect to arrest warrants issued.”
To date, the ICC has sent a team of 42 individuals to Ukraine, its largest ever such deployment, to investigate all crimes that fall within the court’s jurisdiction. Ukraine’s Prosecutor General Andriy Koston claimed last month that authorities had registered more than 65,000 Russian war crimes since Moscow’s conflict began a year ago, which included indiscriminate shelling of civilians, wilful killing, torture, conflict-related sexual violence, looting and forced displacement on a massive scale.
In addition to war crimes, the ICC is investigating crimes against humanity by Russian forces. These are officially defined as acts such as murder, enslavement, deportation, imprisonment, rape and apartheid, when committed as part of a widespread or systematic attack against a civilian population. The ICC is also investigating charges of genocide, defined in a 1948 UN convention as specific acts intended to “destroy, in whole or in part, a national, ethnical, racial or religious group”. Ukraine’s President Zelenskyy has repeatedly accused Russia of genocide, saying Putin intends to end Ukraine’s existence as a nation.
But what are the chances of President Putin being tried for his alleged crimes, or any Russian officials for that matter? Not good, is the general opinion, unless there is regime change in Moscow. A key point is that the ICC doesn’t allow trial in absentia and relies on member states to make arrests. So unless Putin or his officials travel to a country that might turn them over, the court is unlikely to get their hands on him or his lieutenants. Currently, of the two dozen or so people against whom the ICC has pursued war crimes cases about a third remain at large, such as Sudan’s ex-President Omar al-Bashir and two of his ministers. Many others have been members of armed groups rather than state or military leaders.
In a bizarre gesture of defiance last week, Russia’s top investigative body said that it had opened a criminal case against the ICC prosecutor and judges who issued the arrest warrant for President Putin on war crimes charges, as “they knowingly accused an innocent person of a crime”. Also last week, in a statement illustrating his increasing detachment from reality, former Russian President Dmitry Medvedev issued an ominous warning that Russia could strike the ICC with a hypersonic missile in response to its decision to issue an the arrest warrant for President Vladimir Putin. Clear evidence that the Kremlin is rattled by the action of the ICC.
So would President Putin travel to any country that’s bound by obligations to the ICC? He might visit his few allies, such as China, Syria and Iran, but he might hesitate to travel to those ICC states, such as most African and all Latin American states (except Cuba and Nicaragua) and even Tajikistan, which are required to arrest him if he ever steps foot on their territory. Should he do so, it’s of course questionable whether any country would actually arrest him. If they did, the manic Medvedev said such action would be a declaration of war!
This presents a major problem for South Africa, which in August will host this year’s BRICS summit, a meeting that President Putin is expected to attend. But South Africa recognises the ICC, so will be expected to arrest the Russian President on arrival! It’s reported that the South African government is urgently seeking legal advice on how to handle this dilemma, which will be closely followed by many other countries around the world.
Whatever happens, the stain of the arrest warrant will almost certainly work against President Putin and Russia in the court of public opinion. After all, elected leaders of democratic states are particularly sensitive to public opinion and will not wish to be accused of consorting with an alleged wanted war criminal, such as Vladimir Putin.
John Dobson is a former British diplomat, who also worked in UK Prime Minister John Major’s office between 1995 and 1998. He is currently Visiting Fellow at the University of Plymouth.