Those Who Wait: ICC Arrest Warrants Explained

by Sam Walsh, JS Law and French

On Friday 17 March 2023, the Pre-Trial Chamber of the International Criminal Court (ICC) issued two arrest warrants arising from investigations into the situation in Ukraine. The concept of an arrest warrant traditionally evokes images of officers in uniform seizing the individuals charged, placing them in vans marked ‘ICC,’ and sending them to The Hague to await trial. In reality, however, this is not how the international court operates So what do these warrants actually mean? In order to understand their likely long- and short-term implications, this article will examine the nature of the allegations they substantiate, the extent of the courts’ competence, and the context in which this development has occurred.

Who has been indicted and what have they been indicted for?

The most eye-catching aspect of this announcement was the revelation that one of the arrest warrants charges Russian President Vladimir Putin himself In a press release, the ICC Chief Prosecutor’s office stated that it has “reasonable grounds to believe that President Putin bears individual criminal responsibility” for crimes committed in Ukraine. At this point however, this unambiguous statement applies only to the war crimes of “unlawful deportation of population” and “unlawful transfer of population” under Articles 8(2)(a)(vii) and 8(2)(b) (viii) of the Rome Statute, the treaty which establishes the ICC and outlines the crimes for which it has competence The Ukrainian prosecutor’s office has indicated that more than 16,000 instances of these crimes are currently under investigation, while the ICC chief prosecutor Karim Khan said in an official statement that his office had identified cases of “at least hundreds of children” taken from orphanages and care homes in Ukraine to be brought to Russia. Prosecutors believe that President Putin may be directly liable for these crimes or, at the very least, liable for his failure to exercise control over his sub- ordinates. Meanwhile, Russia’s Commissioner for Children’s Rights Maria Alekseyevna Lvova-Belova has been accused of the same crimes as President Putin, albeit as a direct perpetrator, meaning she will be tried for her own actions rather than for those of individuals under her command.

Why these crimes?

Considering that reports from NGOs such as Human Rights Watch and investigations by the UN Human Rights Council indicate that forces under President Putin’s command have been blatantly committing human rights violations on Ukrainian soil for over a year now, it would be reasonable to ask why the ICC has focused on the deportation of children as the subject of its arrest warrants. Aside from the fact that these are heinous and reprehensible crimes, it would appear that the prosecutor’s decision is based on the sheer weight of inculpatory evidence available to him This is exemplified by the findings of a report published by the UN’s Independent International Commission of Inquiry on Ukraine two days before the warrants were released establishing that Russia had carried out extensive forced deportations. Chief Prosecutor Karim Khan also pointed to a decree issued by President Putin expediting the conferral of Russian citizenship upon Ukrainian children as evidence of “an intention” on the President’s part to “permanently remove these children from their own country ” President Putin had also previously appeared on live television to discuss the policy with Ms Lvova-Belova, who thanked him for the opportunity he had given her to “adopt” a child from Mariupol. Therefore, it is submitted that there is little which could place these individuals' responsibility in doubt. However, it is widely recognised that these crimes are far from the only ones for which the Russian President could be indicted and it is reasonable to assume that the Chief Prosecutor is, for now, simply picking the low-hanging fruit Indeed, while the Pre-Trial Chamber was not obliged to announce the issuing of these warrants, it ultimately opted to do so because it believed that their publicity may contribute to preventing further crimes from being committed.

What has been the reaction?

The announcement was quickly welcomed by Ukrainian President Volodymyr Zelensky and many Western leaders, while Human Rights Watch described the warrants as a “wake-up call to others committing abuses or covering them up.” Russia’s foreign ministry meanwhile was quick to point out that “Russia is not a party to the Rome Statute of the ICC and has no obligations under it” and described the warrants as “legally null and void” within Russia itself Indeed, the ICC has no police force or enforcement mechanism and thus relies on its 123 State parties to enforce its warrants of their own accord While Russia signed the Rome Statute in 2000, it never ratified the treaty and eventually withdrew from the agreement entirely in 2016. Ultimately, it is accepted these warrants are unlikely to be enforced any time soon.

What could this mean in the long term?

While the warrant against President Putin is unlikely to have any immediate effect, this does not mean that it will not play a role in placing him before the court in the future This is because there is no limit on the period in which ICC arrest warrants can be enforced. In addition, the ICC statute allows the court to ignore the personal immunity which usually attaches to heads of state under public international law. As a result, two paths towards President Putin’s future arrest present themselves. First, the Russian president could potentially be arrested if he travels to any state which is party to the ICC and willing to enforce its decisions This warrant is therefore an important tool in efforts to effectively render President Putin a true international pariah Alternatively, this warrant could be used to execute Putin’s arrest in the event that the political tide in Russia turns against him. In a postwar world, it is likely that any attempts the Russian state makes to reintegrate itself into the international order will be conditional on handing over their indicted leader. This outcome, while at present merely speculative, is not without precedent, as a similar sequence of events led to Serbia’s decision to hand over ex-President Slobodan Milošević to the International Criminal Tribunal for the former Yugoslavia.

Conclusion: What’s next?

The lack of immediate prospect of Putin’s arrest has not deterred the Chief Prosecutor Investigations into the situation in Ukraine will continue and efforts to bring Russia’s president to justice are ongoing. A war crimes conference has been convened in London and debate is continuing on how Russian leaders may be prosecuted for the crime of aggression, which criminalises individuals who plan and execute an aggressive war in breach of international law. While UN investigators recently announced they had found no clear evidence of the crime of genocide thus far, it cannot be ruled out, particularly as Article 2(e) of the Convention on Genocide states that “forcibly transferring children of the group to another group” may constitute genocide if accompanied by the requisite intent to “destroy in whole or in part” the group in question. Scrutinising Russian actions for evidence of this specific intent will no doubt be a key aspect of investigations into the situation in Ukraine in the months and years to come. Nonetheless, the significance of the current ICC arrest warrants should not be underestimated In issuing an arrest warrant for the sitting head of a belligerent nuclear power, the ICC has set out into uncharted territory Never before has the Court conducted a prosecution on this scale, and while it is an institution which runs as much on patience as it does on action, anyone seeking justice in Ukraine must remember that good things often come to those who wait.