On March 17, the International Criminal Court issued arrest warrants against Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, Russia’s commissioner for children’s rights, for the alleged war crime of unlawful deportation of children and unlawful transfer of children from occupied areas of Ukraine to the Russian Federation.
While both Russia and Ukraine are non-parties to the ICC, the second Article 12(3) declaration filed in 2015 by Ukraine accepted the jurisdiction of the Court encompassing the crimes committed on its territory since February 20, 2014. That became the basis of the ongoing investigation. In March 2022, prosecutor Karim Khan opened an investigation concerning allegations of war crimes, crimes against humanity, or genocide, after receiving an unprecedented referral of the situation by a group of over 40 states to the ICC.
The situation in Ukraine has seen many firsts for the Court. The arrest warrant issued is the first in the ICC’s history against a permanent member of the U.N. Security Council. Likewise, Putin is charged under Article 28(b), calling for criminal civilian superior responsibility. The investigation in Ukraine has also witnessed measures that are equally welcoming and troubling, including the extension of monetary support and human resources by state parties to the Court only for one situation instead of the ICC as a whole – consequently, raising concerns around the Court’s selectivity, bias, and independence.
The issuance of the arrest warrants now has real consequences for both suspects. The 123 state parties of the ICC are under an international legal obligation to cooperate with the Court and arrest and surrender the suspects to the Court if found on their territory or control. Previously, the Court has had a checkered history in this regard.
Consider its 2009 warrant for the arrest of Omar Hassan Ahmad Al Bashir, the former head of state of Sudan (which is not a state party to the ICC). Al Bashir, who still remains at large, travelled across multiple state parties’ jurisdictions despite having an active arrest warrant against his name for the alleged commission of genocide, and other international crimes in Darfur.
The Court found that a number of state parties (including Jordan, Malawi, Djibouti, and South Africa) were in violation of their obligation to execute the arrest warrant as it hampered the fulfilment of its mandate. In doing so, the ICC held that the personal immunity of Al Bashir didn’t conflict with the duty to cooperate with the Court as no immunity exists in customary international law vis-a-vis an international court. Further, since the situation in Sudan was referred to the Court by the U.N. Security Council (Res 593 (2005)), no immunity could be said to be in place under Article 27(2).
Putin is expected to travel to South Africa to attend the upcoming BRICS Summit in August, and it might become a test case for the execution of the warrants. In 2017, South Africa, following its failure to arrest Al Bashir and the backlash, tabled a bill in its parliament to withdraw from the ICC. In a welcome move, earlier this month, the government withdrew the bill and remains a member of the Court.
Having said that, South Africa has invited the Russian President to the 2023 BRICS Summit. If South Africa fails to arrest and surrender Putin to the ICC, it will go against domestic law i.e., the Implementation of the Rome Statute Act (2002). The same was reflected in the 2015 decision of the High Court in Pretoria, which held that the “government’s failure to arrest Bashir is inconsistent with the Constitution” (the ruling was later upheld by the Supreme Court in 2016). South Africa also risks being hauled up by the ICC yet again for non-compliance and may get referred to the Assembly of State Parties (ASP), the Court’s management oversight and legislative body, to pressure South Africa to meet its commitment under the Rome Statute.
India has not ratified the Rome Statute and is under no obligation to cooperate with the ICC. In the past, when Al Bashir travelled to India for the India-Africa Forum Summit in 2015, India didn’t respond to the Court’s note verbale requesting cooperation to arrest and surrender him to ICC custody. The ICC may request a non-state party to assist the court under Article 87(5), but India could ignore the arrest warrant if Putin or Maria Lvova-Belova visit New Delhi for the G-20 Summit.
That said, the forceful transfer and deportation of children constitute a grave breach of the Fourth Geneva Convention (Article 147). Each state party to the 1949 Geneva Conventions including India and South Africa, has the duty to criminalize grave breaches in its domestic law and either prosecute or extradite the accused persons to the other states. India, under the Geneva Conventions Act, 1960, provides for domestic prosecution and punishment of grave breaches (Section 3). However, no court is empowered to take any action without a complaint by the government (Section 17).
At the same time, according to the International Court of Justice’s decision in the DRC v. Belgium (2000), a head of state’s immunity under international law would remain intact before a national court, even if national law provides for jurisdiction pursuant to an international treaty. Though it might cause a diplomatic furor, India would be under no legal obligation to proceed against Putin. But the same protection cannot be awarded to Lvova-Belova if she decides to accompany the president.
Given India’s close strategic and military ties with the Russian Federation, pursuing an arrest would seem difficult, although not doing so would be a violation of India’s international obligations and moral obligation as a democratic republic and an aspirant to permanent membership in the U.N. Security Council, committed to international peace and security.
Despite the fact that the ICC mandates that an accused be present at their trial (Article 63) and the fact that Court hasn’t proceeded against an accused in absentia to date, Prosecutor Khan has called for confirmation of charges for Joseph Kony, commander-in-chief of the Lord’s Resistance Army, in his absence for crimes committed in Uganda. Acknowledging the remote possibility of both Putin and Lvova-Belova being present at The Hague, the prosecutor could move ahead against the suspects in their absence.