The International Criminal Court (ICC) declared on Friday March 17 that it had issued an arrest warrant against Russian President Vladimir Putin for his responsibility for war crimes perpetrated in Ukraine, which Volodymyr Zelensky welcomed by qualifying this decision as “historical”.
The master of the Kremlin “is allegedly responsible for the war crime of illegal deportation of population (children) and illegal transfer of population (children) from occupied areas of Ukraine to the Russian Federation”, can we read in his press release. More than 16,000 Ukrainian children have indeed been deported to Russia since the invasion, according to kyiv, and many have been placed in institutions and foster homes. Maria Alekseyevna Lvova-Belova, presidential commissioner for children’s rights in Russia, is also targeted by a warrant.
For Mathilde Philip-Gay, professor of law at Jean-Moulin Lyon 3 University and author of “Can we judge Poutine?” (Albin Michel, May 2023), this decision by the ICC is a step in the right direction. But it must be supported by the establishment of a specialized court, in order to judge the other crimes of the Russian president and to speed up the deadlines.
L’Express: What is the purpose of the arrest warrant of the International Criminal Court against Vladimir Putin?
Mathilde Philip-Gay: It has a double function. Symbolically first, the first arrest warrant disclosed by the ICC for the war crime of “transfer of children” concerns Vladimir Putin, and not Maria Alekseyevna Lvova-Belova, which means that it first targets the leader of the state of the Russian Federation. This is all the more important since he is the leader of a nuclear power and of one of the five permanent member countries of the UN Security Council, which is sometimes called “the policeman of the world”, because it is the body responsible for international peace and security. This shows that even the leaders of one of these powers are no longer immune from criminal prosecution when they commit an international crime.
It also reveals that international criminal law is moving in the right direction when we think of a situation already known in the past, with the Iraq war launched in 2003 by the United States, another of these powers, whose leaders – especially George W. Bush – weren’t really bothered at the time.
Legally then, this decision of the ICC means that Vladimir Putin could be arrested if he went to one of the 123 States which have ratified the statute of the ICC, the latter having the obligation to hand him over to the jurisdiction. Some states like Ukraine also recognize the legitimacy of the ICC, although they are not “parties” to the Court’s statute. This increases the number of countries in which the Russian head of state could no longer go.
Is this arrest warrant sufficient?
It is useful, but not sufficient. Regarding the war in Ukraine, the ICC is competent to try three types of crimes: war crimes, crimes against humanity and genocide. But for the moment, the arrest warrant for Putin concerns only one type of crime, the war crime, namely that committed against thousands of Ukrainian children. We must be careful about its content because it is not public, contrary to the information that this arrest warrant exists. This is linked to the fact that the Russian President signed several decrees facilitating the adoption of children after their forced transfer to Russia, proof of his involvement in this process. But there will certainly be others, for example the bombing of civilian installations.
The whole challenge of the prosecution for these three crimes will be to prove his direct involvement, which is not easy, because the chain of command is very opaque in Russia. The solution would be to support the creation of a specialized jurisdiction to try the crime of aggression – proposed by a Franco-British jurist, Philippe Sands – which is being set up at the initiative of the Ukraine, about twenty countries, the European Union and the Council of Europe, and which would be complementary to the ICC.
It would make it possible to condemn the highest officials, including Vladimir Putin, for sure, because the crime of aggression is precisely a crime of a senior leader, a “matrix” crime in the sense that all the others flow from it. This would also make it possible to have a first judgment, in a shorter time than that of the ICC, which would then rule on the other crimes. It should be remembered that Vladimir Putin is already seventy years old and that time is running out to judge him.
Have there already been precedents with other heads of state?
Yes, but it was first of all special international jurisdictions that began to implicate heads of state. Apart from Nuremberg, the first jurisdiction was the international tribunal for the former Yugoslavia, which implicated Slobodan Milosevic, while he was still in office, for war crimes, crimes against humanity and genocide. His warrant was issued in 1999, but he died in 2006, without a verdict being rendered.
There was also Charles Taylor, the ex-president of Liberia, who was sentenced to 50 years in prison in 2012 by the special court for Sierra Leone, the first head of state sentenced since Nuremberg. When we look at the deadlines, the latter’s warrant was also issued in 2005, which reinforces the question of how quickly Putin will have to be tried.
Finally, with regard to the ICC, two heads of state have been implicated: Muammar Gaddafi in Libya in 2011 – he will die four months after the issuance of the warrant -, and Omar el-Bechir, current president of Sudan, in 2009 and 2011. It can be noted that because of this arrest warrant, the latter had given up going to South Africa so as not to be arrested.
What does this decision imply from a diplomatic point of view with other countries?
In reality, many “big” countries do not recognize the ICC: this is the case of China, India, Israel, but also and especially the United States. Then, Vladimir Putin could always communicate by telephone or video with the other heads of state, which would therefore not completely break diplomatic relations. Putin has a trip planned to South Africa soon: it will be interesting to see his positioning.