On 24 February 2022, Russian, under the direction and leadership of President Vladimir Putin, launched a full scale invasion of Ukraine. The so called “special military operation” to “demilitarise a nazified” Ukraine, has resulted in thousands of deaths on both sides and resulted in millions becoming displaced.
Over a year since the invasion, the International Criminal Court (ICC), has issued two arrest warrants. The first is for President Vladimir Putin. In issuing the warrant, the ICC stated this is due to President Putin being:
“[…] allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation. The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).”
The second is for Maria Lvova-Belova, the Russian Commissioner for Children’s Rights, who the ICC alleges is also responsible for the war crime of unlawful deportation of children and is suspected to have committed the acts directly, jointly and/or through others.
These offences, created by virtue the Rome Statue, specifically, are Article 8(2)(a)(vii) which states:
“The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of this Statute, “war crimes” means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (vii) Unlawful deportation or transfer or unlawful confinement”
And Article 8(2)(b)(viii) which states:
“The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of this Statute, “war crimes” means: Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory”
Both President Putin and Ms Lvova-Belova would be liable under Article 25(3)(a), which states:
“In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”
President Putin alone would also be liable by virtue of Article 28(b), which states:
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates…”
Karim Ahmad Khan KC, of Temple Garden Chambers and Chief Prosecutor for the ICC, stated that:
“Incidents identified by my Office include the deportation of at least hundreds of children taken from orphanages and children’s care homes. Many of these children, we allege, have since been given for adoption in the Russian Federation. The law was changed in the Russian Federation, through Presidential decrees issued by President Putin, to expedite the conferral of Russian citizenship, making it easier for them to be adopted by Russian families.
My Office alleges that these acts, amongst others, demonstrate an intention to permanently remove these children from their own country. At the time of these deportations, the Ukrainian children were protected persons under the Fourth Geneva Convention.”
Now, just because the law under international treaty states these things, the international community has been handed a complex situation to deal with.
Firstly, and of significant importance, is that Russia is not a signatory to the Rome Statute. Effectively meaning that the ICC has very limited jurisdiction over crimes committed by Russian nationals. Ukraine, however, is a signatory, and the alleged crimes have taken place (at least partially) within the territory of Ukraine. Therefore, the ICC could exercise its jurisdiction over these war crimes, including Vladimir Putin. Further, the ICC has an inherent jurisdiction to investigate alleged war crimes in Ukraine by virtue of state referrals from numerous parties.
The issuing of an arrest warrant against Putin, is a significant step in international law and has already sent a strong message that no one is above the law or outside the reach of the ICC. What will nonetheless remain of utmost difficulty, is the enforcement of the warrant, given Putin’s position as President and considering the sheer power and influence he wields. Russia has consistently shown little regard for most of the international law and has not hesitated to disempower this when it is the one under the microscope, for example, Russia consistently uses its veto power in the UN Security Council to protect its interests.
The ICC, as a collective supranational court, has no police force, agents, or enforcement mechanism of its own. The ICC relies on its signatory member states to arrest individuals who have ICC arrest warrants and to surrender these to the court. The likelihood of Russia itself cooperating and surrendering Putin is effectively none existent, the only way, therefore, that he could ever come before the court’s jurisdiction, is if a member state arrested him whilst on their territory. This will prove extremely difficult it its own right, assuming Putin ever even put himself at risk of this to begin with. The arrest of the president of one of the most powerful countries of the past 80 years would undoubtedly lead to worldwide fallout. Wars have been started over much less.
Another significant challenge to the enforcement of this warrant is that the Rome Statute is not universally accepted, and several countries, including Belarus, China, Cuba, India, Malaysia, Pakistan, Saudi Arabia, Sri Lanka and Turkey do not support the ICC, meaning Putin can freely enter these countries without fear of arrest. Further, some countries, namely the USA, have not ratified the Rome Statute, with many Senators being openly critical of the court, calling into question whether other countries would follow in suit in relation to this warrant. However, US President Biden said that the warrant:
“is justified, but the question is…it’s not internationally recognised, by us either, but I think it makes a strong point. He has clearly committed war crimes.”
In conclusion, this is a significant development in international law and geo-political relations. Whilst it is unlikely, at least in the near future, to result in a trial or any formal accountability, it has sent a strong message that the international community is still paying attention to the situation. As in many major conflicts and reprehensible situations, individuals can be held accountable years after the atrocities. In response to the warrant, Ukrainian President Volodymyr Zelenskyy has stated:
“[the] case has true prospect. The historic decision, from which historical responsibility will begin. The head of the terrorist state and another Russian official have officially become suspects in a war crime […] Over 16,000 cases of forced deportation have already been recorded. I am grateful for integrity and willingness to really bring to justice those who are guilty.”
How does the ICC work?
The ICC is a permanent international criminal court established by the Rome Statute, a treaty which came into force in 2002 and has 123 state parties. The ICC’s mandate is to prosecute individuals responsible for the most serious crimes which transcend national boundaries. There are four broad category of crimes the ICC can prosecute:
Genocide – That being the specific intent to destroy a national, ethnic, racial or religious group by killing or inflicting conditions calculated to destroy.
Crimes against humanity – Those crimes which are serious violations committed against a civilian population, there are 15 specific crimes against humanity including murder, rape, enforced disappearance, slavery and torture.
War crimes – Which are grave breaches of the Geneva Conventions committed during armed conflict, these include attacks against hospitals, torture of prisoners of war, and the use of child soldiers.
Crime of aggression – That being the use of an armed force by a State against the independence of another State
The ICC is located in The Hague, Netherlands and is composed of four main organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The Presidency is responsible for the overall administration of the ICC and is composed of the President (currently Judge Piotr Hofmanski) and two Vice-Presidents (currently Judge Luz del Carmen Carranza and Judge Antoine Kesia-Mbe Mindua). The Judicial Divisions are responsible for conducting the judicial proceedings, including pre-trial (the stage at which arrest warrants are issues), trial of defendants, and appeals. The Office of the Prosecutor is responsible for investigating and prosecuting crimes within the ICC’s jurisdiction. The Registry is responsible for the non-judicial aspects of the ICC’s work, including the administration of the court and the protection of victims and witnesses.
The ICC has jurisdiction over crimes committed on the territory of a state party to the Rome Statute, crimes committed by a national of a state party, or crimes referred to the court by the United Nations Security Council.
The ICC’s proceedings are based on the principle of complementarity, which means that the ICC can only prosecute crimes if national courts are unwilling or unable to do so. This is designed to encourage national authorities to take responsibility for prosecuting crimes committed on their territory and to ensure that the ICC only intervenes when necessary, this is why a great deal of states who may technically be engaged in the commission of offences such as war crimes will be unlikely to come before the ICC and why most referrals are from states which are struggling with the maintenance of their own nation.
The ICC’s proceedings follow a specific process, which begins with the Prosecutor initiating an investigation (the investigation into the 2022 invasion of Ukraine began almost immediately after the invasion). The Prosecutor can do this on their own initiative or based on information received from states, international organisations, or individuals, known as referrals. The Prosecutor then conducts a preliminary examination to determine whether there is a reasonable basis to proceed with an investigation, this includes viewing any evidence submitted to the office. If the Prosecutor decides to proceed, they will request the Pre-Trial Chamber to authorise an investigation.
Once an investigation is authorised, the Prosecutor will gather evidence and identify suspects. If there is enough evidence, the Prosecutor can request the Pre-Trial Chamber to issue an arrest warrant. Upon surrender or arrest, the suspects will then have an opportunity to challenge the charges and present their case at a trial, during the trial, they are detained in a special detention facility at The Hague. If found guilty, the suspects can be sentenced to imprisonment, fines, or other penalties. Due to its supranational standing, the ICC does not itself have a prison, and member states volunteer to house those sentenced by the ICC. Currently, the United Kingdom houses one ICC prisoner, former President of Liberia Charles Taylor, is detained at HMP Frankland
Avaia Williams – Founder
This blog was published on Sunday 19th March
Nightingale Rights Initiative 
I never knew that the UK holds an ICC prisoner. That’s something else l have learned today.
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