ICC's warrant for Putin: what it actually means

On 17 March 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin for alleged war crimes involving abductions of children from Ukraine. The charges stipulate that thousands of Ukrainian children were kidnapped and transported into Russia.

The warrant marks the first time that the ICC has issued an arrest warrant against a sitting head of state. It is worth noting, however, that Russia has not ratified the statute the ICC was founded on, and therefore does not recognise its jurisdiction. It remains to be seen whether Putin will actually be arrested or ever face trial at the ICC. Kremlin spokesman Dmitry Peskov dismissed the charges outright and called them outrageous and unacceptable. Nevertheless, the ICC’s investigation and potential indictment could have political and diplomatic ramifications for Russia and Putin, as they could further isolate Russia from the international community and potentially lead to economic sanctions.

The Rome Statute, which created the ICC, was ratified on July 17, 1998, and came into force on 1 July 2002. It is a court of last resort, meaning that it can only exercise its jurisdiction if a state is unwilling or unable to prosecute the individual responsible for the crimes. Its mandate is to prosecute individuals who have committed serious international crimes, including genocide, crimes against humanity, and war crimes. By highlighting the criminal responsibility of individuals rather than states, the ICC prioritises individual culpability and criminal prosecution of political leaders. The ICC is an independent international organisation and not part of the United Nations judicial system.

The ICC’s record: Successful prosecutions but also charges of bias

The history of ICC warrants against high-level politicians is mixed. One notable success was the conviction of former Congolese Vice President Jean-Pierre Bemba in 2016 for war crimes and crimes against humanity committed in the Central African Republic. Bemba was arrested in 2008 following an ICC warrant and was tried and convicted by the court in 2016. Another notable success was the surrender and prosecution of former Ivory Coast President Laurent Gbagbo, who was arrested in 2011 following an ICC warrant and was tried and acquitted in 2019.

However, the ICC has also faced criticism and challenges over the years. Some countries, including the United States, Russia, China, and India, have not signed on to the ICC, citing concerns about the court's jurisdiction and potential impact on national sovereignty. The ICC has faced accusations of bias against certain countries or groups of countries, politicisation, and inefficiency, and has struggled with issues related to witness protection, cooperation from states, and the execution of arrest warrants. Critics argue that the court is dominated by Western countries, and that it has unfairly targeted leaders from Africa while ignoring atrocities committed by leaders from other parts of the world.

The ICC's focus on prosecuting individuals for crimes against humanity and war crimes could undermine peace negotiations and reconciliation efforts, some argue, noting that immunity for leaders is necessary for peace and stability in some situations.

The US, for example, has distanced itself from the court by passing legislation to prohibit cooperation with the ICC and imposing sanctions on ICC officials. The US has further claimed that the ICC poses a threat to its sovereignty, and that it unfairly targets US officials and military personnel. China has also been critical of the court’s actions, including its investigations into alleged crimes committed in Myanmar. China has argued that the ICC is politicised and interferes in the internal affairs of other countries. India maintains that the court’s jurisdiction is limited to crimes committed in states that have ratified the Rome Statute, and that its own legal system is capable of handling cases of war crimes, genocide, and crimes against humanity.

The court’s dilemma: prosecutors without enforcement

Signatory countries are obligated to cooperate with the ICC, which includes arresting and surrendering individuals who have been indicted by the court. Since the ICC does not have its own enforcement mechanism, it relies heavily on the cooperation of states to execute its arrest warrants. If a political leader who has a pending arrest warrant were to visit a signatory country to the ICC, that country would be obligated to arrest and surrender that individual to the court. In such cases, the likelihood of a successful arrest warrant is higher. In practice, however, many countries do not have the political will or capacity to carry out such an arrest. Moreover, some countries may choose not to cooperate with the ICC or might have their own political or strategic reasons for not arresting individuals who have been indicted by the court.

The actual likelihood of a political leader such as Putin being arrested and surrendered to the ICC is difficult to predict and will depend on a range of political, legal, and practical factors.

(Dr Kristian Alexander is a Senior Fellow and the Director of International Security & Terrorism Program at TRENDS Research and Advisory, Abu Dhabi, and Head of the Strategic Studies Department.)

• Opinion