Last month, the International Criminal Court announced warrants for the arrest of Russia’s President Vladimir Putin and commissioner for children’s rights Maria Lvova-Belova. Both are charged as the direct perpetrators of war crimes—specifically, the deportation and illegal transfer of children from the occupied territory of Ukraine to Russia; Putin, additionally, is charged as a superior for his failure to properly exercise control over civilian and military subordinates who committed the crimes. A major legal obstacle to executing this warrant will come from Putin's status as head of state, which does not give him immunity before the ICC but can pose significant challenges for a state that aims to arrest him under its ICC obligations.

The warrants against Putin and Lvova-Belova are the first to be issued during the ICC investigation of the situation in Ukraine, which officially began in March 2022, shortly after Russia's full-scale invasion. Although neither Russia nor Ukraine is a state party to the ICC, the court has jurisdiction over persons suspected of committing genocide, crimes against humanity and war crimes on the territory of Ukraine since November 2013 pursuant to ad hoc declarations submitted by Ukraine in 2014 and 2015. The ICC, however, has much more limited jurisdiction over the crime of aggression (i.e., the invasion itself), due to the special jurisdictional regime governing that crime.¹ This fact has led to the ongoing debate on establishing a special international tribunal to prosecute Russia's leadership for unleashing its war of aggression.  

These ICC warrants are not the first against Russian nationals (two of three suspects named last summer in relation to the 2008 conflict in Georgia are citizens of Russia), but the issuing of an international arrest warrant and war crimes charges against the leader of the world's largest country and a permanent U.N. Security Council member mark a truly historic moment for international criminal justice.

What is the International Criminal Court?

The ICC is a permanent international adjudicating body with criminal jurisdiction over individuals responsible for international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The court was established in 1998 after adoption of the Rome Statute—the court’s founding treaty—and started operations in July 2002.

From an international-law standpoint, the ICC is an international intergovernmental organization. Like other international organizations, it has to rely on the cooperation of state parties and the rare luck of voluntary assistance from non-party or “third” states. Furthermore, the ICC’s jurisdiction is restricted to crimes committed on state parties' territory or by those states' nationals. The court can go beyond that in cases where a situation is referred to it by the U.N. Security Council or by a unilateral declaration of a state recognizing the court’s jurisdiction. Ukraine used the latter option when it submitted its ad hoc declarations.

The ICC is complementary to national jurisdictions: The court may only proceed if the state with jurisdiction cannot investigate or prosecute the crime. National courts thus have priority, but only if they work "properly" and, for example, do not shield perpetrators from criminal responsibility.

While investigating, the ICC must look at the behavior of all parties to a conflict. Heads of state and other high-ranking state officials are natural priority targets for ICC investigations. According to the Rome Statute, the official position of the defendant and immunities do not protect them from criminal responsibility.

However, the ICC has not been successful in prosecuting high-ranking state officials; so far, all persons convicted by the ICC have been senior and middle-level rebel commanders from African states. The only incumbent head of state tried was Kenyan President Uhuru Kenyatta, who was summoned to the court before being elected president, and in whose case the prosecutor withdrew charges of crimes against humanity due to insufficient evidence. The trial over former Ivorian President Lorain Gbagbo resulted in his acquittal on all charges. Meanwhile, the warrants for the arrest of heads of state Muammar Gaddafi of Libya and Omar al-Bashir of Sudan were never executed. Thus, no acting head of state has been arrested and surrendered to the ICC.

Russia and the ICC

Russia, as noted above, is not a state party to the ICC statute and has never been close to joining the court. However, before 2016, Russia had not been hostile to the ICC. Russian representatives participated in the drafting and adoption of the Rome Statute in 1998, and Russia signed the statute in 2000, though it never ratified it to become a member state. In fact, its official position toward the ICC during those years was arguably friendlier than that of the U.S. In the U.N. Security Council, Russia voted in favor of referring the situations in Darfur and Libya to the ICC. Russia cooperated with the ICC on the investigation in Georgia, with delegations from the ICC's Office of the Prosecutor (OTP) even visiting Moscow several times during preliminary examination in 2008-2016. However, after the OTP’s 2016 report saying the conflict in Ukraine amounted to an armed conflict between Ukraine and Russia, Moscow officially declared that it does not intend to become a party to the founding treaty.  

Under its current "non-recognition" policy, Russia makes the same fundamental objection to the ICC as the United States and Israel before it: that the court lacks jurisdiction to try third-party nationals, as those states did not consent to the ICC's jurisdiction. This argument is legally meritless, as it confuses the international obligations of states to cooperate with the ICC and the criminal jurisdiction of states, which states can individually or collectively delegate to an international tribunal. Thus, Ukraine delegated to the court territorial jurisdiction, for which the perpetrator's nationality is irrelevant. The same logic applies to investigating crimes allegedly committed by U.S. nationals on the territory of Afghanistan, an ICC state party.

The Arrest Warrants and Their Execution

The issuance of warrants means that the indicted persons become "suspects" in the context of ICC proceedings, and the investigation acquires a personal dimension.

The arrest warrant does not expire unless recalled by the court, and statutory limitations do not apply to ICC crimes. With time, the warrant may be withdrawn by the judges and replaced by the motion to appear, or be terminated due to the inadmissibility of the case before the court or upon the suspect's death.

The ICC cannot try in absentia, so for the full trial to begin, suspects must be arrested and surrendered to the court. The court does not have its own police powers, and execution of the arrest warrant is up to states. Formally, 124 states (123 parties to the Rome Statute and Ukraine by its ad hoc acceptance of the ICC's jurisdiction) are obligated to execute the ICC warrants for Putin and Lvova-Belova. The court can also send requests for arrest and surrender to third-party states, but they do not have a legal obligation to arrest suspects and bring them to court. 

The obligation of states-parties vis-à-vis the court, including the execution of the arrest warrant, does not depend on domestic legal provisions. The Vienna Convention on the Law of Treaties, which governs the ICC statute, says that domestic law provisions (or lack thereof) do not justify the non-performance of the state's international obligations. According to the ICC's jurisprudence, failure to comply with the court's request to arrest and surrender violate the obligations of the states under the statute. The court, however, does not have an enforcement mechanism.

In the case of Putin, the elephant in the room is his immunity as an acting head of state. Such immunity exists for the duration of a person's term in office and precludes any coercive actions by another state. Immunity is based on the principle of the sovereign equality of states. Trial in one state over the leaders of another state actually means that one state judges another, which is contrary to international law. As the international criminal courts, however, are not organs of any state, the situation is different, and immunity is not an obstacle to criminal prosecution, which is expressly stated in article 27 of the Rome Statute. Moreover, the International Court of Justice, the U.N.'s main judicial body, has recognized that immunity might not hinder trial before “certain international criminal courts where they have jurisdiction.”

While it is clear that, in the Hague, Putin cannot be protected by immunity, his actual arrest by states other than Russia could be seen as trapping states in a conflict of obligations—before the ICC (to surrender a suspect to the court) and before Russia (to respect the immunity of the head of state). The ICC statute, in article 98, recognizes the possibility of such a conflict, providing that the ICC “may not proceed with a request for surrender that would require the requested state to act inconsistently with its obligations under international agreements.” The United States has referred to that clause, having concluded bilateral agreements with 93 states, both parties and non-parties to the Rome Statute, that prohibit the surrender of U.S. nationals to the ICC. Although such agreements are not in line with international law generally or the Rome Statute itself, Armenia announced recently that it would consider entering into such an agreement with Russia in the event that Yerevan ratifies the Rome Statute.

In the case of Sudan's al-Bashir, the ICC developed a position that the non-application of immunities in a situation of states' cooperating with the ICC is a norm of customary international law, which would make article 98 inapplicable to Putin’s case. The reception of this ruling, however, was quite diverse among states. There is also a noteworthy difference between the cases of al-Bashir and Putin: The situation in Darfur was referred to the ICC by the U.N. Security Council, and its powers played a significant role in discussions about the al-Bashir warrant, which is not the case with Putin and Russia.

There is much speculation about the legal and political possibilities of arresting Putin during his visits abroad. Several states have already announced that if suspects appear on their territory, they will be arrested; Germany was first on the list. Putin's travel plans have yet to be revealed, and it is doubtful that he will travel extensively outside Russia.² In 2023 summits of the Commonwealth of Independent States (CIS), Shanghai Cooperation Organization (SCO) and G20 will all be held in non-ICC countries, such as Kyrgyzstan and India. One can, however, imagine a visit to a rare state that is both a party to the ICC and a Russian ally, such as Tajikistan, to be used precisely to demonstrate that the ICC is powerless.

There are just a few ICC states among the members of the regional organizations in which the Kremlin participates. Tajikistan and Moldova are members of the CIS, but the latter’s membership is a pure formality, as Moldovan leaders do not participate in CIS meetings. Another CIS member, Armenia, is now seriously considering joining the ICC, and has already gotten a rebuke from Moscow. Tajikistan is the only ICC member state among the full members of the SCO. Brazil and South Africa are both ICC state parties and members of BRICS.

The only known test ground for Putin's warrant in 2023 would be the BRICS summit in Durban, South Africa, where Putin has been invited by the hosts (the Kremlin has not confirmed that Putin will attend the summit in person). South Africa is reportedly holding “consultations” over Putin’s visit. The government is aware of its uncomfortable position before its courts, which held that South Africa is obliged to implement ICC rulings, including arresting heads of state. The Durban summit would also implicate Brazil, another ICC state party, in personal negotiations with an ICC suspect.

Most likely, Putin will not be traveling to Rome Statute countries even if the risks of actual arrest were minimal. There is significantly less interest in Lvova-Belova's arrest, but she will probably be even more restricted in travel due to risks. Arrest warrants may also create problems for Putin's potential replacements at these summits, such as Prime Minister Mikhail Mishustin or Foreign Minister Sergei Lavrov.

The Significance of the Arrest Warrant

It remains to be seen whether Putin, Lvova-Belova or both suspects will end up one day in the Hague. Today such a scenario looks extremely unlikely. However, one should consider the importance of the message sent by the court. It is a brave step in the right direction. It is a powerful message and a reminder of accountability.

This message is important for Ukrainians, the primary victims of the Putin regime’s crimes. The warrant recognizes their victimhood and promises that the victims will have a voice in future trials. And, despite all the skepticism, the warrants could also potentially deter future crimes of a similar nature.

Finally, the warrants are a message for Russia. Putin’s international designation as a war crime suspect increases Russia’s international isolation and sends a signal to those Russian elites who shared the illusion that a return to normal is possible with Putin in power. The warrants are celebrated by many Russians opposing the regime and confirm their belief that Putin and his regime represent an existential threat to Russia's future.

Opinions expressed herein are solely those of the author. Photo above shared by Rawpixel under a CC0 1.0 license; social media photo shared by Kremlin.ru under a CC BY 4.0 license.