On Friday, 17 March 2023, the Pre-Trial Chamber II of the International Criminal Court (“ICC”) issued arrest warrants against Mr Vladimir Vladimirovich Putin, President of the Russian Federation, and Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights for the Russian Federation.
The two individuals are (allegedly) responsible for war crimes under Article 8 of the Rome Statute that happened on the territory of Ukraine after the 24 February 2022, when Russia invaded the Ukrainian territory. According to the ICC, “[t]here are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children”.
To understand how and on what legal basis the arrest warrants were issued, since neither the Russian Federation, nor Ukraine are State Parties to the Rome Statute (requirement that allows the ICC to have jurisdiction over State Parties, and therefore, exercise competences to prosecute international crimes on the concerned territories), a step back is needed. Therefore, the first question that should be addressed is how could the ICC exercise jurisdiction over international crime(s) committed on the territory of a non-State Party to the ICC, when the perpetrator(s) are national(s) of another non-State Party (pre-condition to the exercise of jurisdiction according to Article 12 of the Rome Statute).
The Russian Federation did sign the Rome Statute, but in 2016 withdrew its signature. Ukraine, on the contrary, has never been amongst the signatories of the Rome Statute, but has twice accepted the Court’s ad hoc jurisdiction over alleged international crimes occurring on its territory, in accordance with Article 12 (3) of the Rome Statute - the first one concerning the Maidan protests, and had a temporal limitation, as it focused on the alleged crimes committed on Ukrainian territory from 21 November 2013 to 22 February 2014. Through the second declaration (submitted on 8 September 2015 and concerning mainly the occupation of Crimea), Ukraine accepted the jurisdiction of the Court for the purpose of “identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014”. The open-ended temporal clause implies that alleged crimes occurred within Ukrainian soil can be investigated and prosecuted before the ICC - including those acts that happened during the ongoing conflict in Ukraine -; and regardless of the nationalit(ies) of the perpetrator(s) .
Since Ukraine is not a party to the ICC, according to the procedure, before opening an investigation the Prosecution requires an authorisation from the Pre-Trial Chamber of the ICC to open such investigation. However, due to the unprecedented joint referrals of the situation in Ukraine by 43 State Parties to the Rome Statute, this additional burden has been removed and the investigation started on 2 March 2022, which covers international crimes allegedly occurred within the Ukrainian soil from 21 November 2013 onwards. The analysed arrest warrants fall within the context of this investigation.
As mentioned, the arrest warrants against Mr Putin and Ms Lvova-Belova “only” concern war crimes of unlawful deportation of population (children) and that of unlawful transfer of population (children) from the occupied areas of Ukraine to the Russian territory. However, already in December 2020, the former Prosecutor of the ICC, Fatou Bensouda, concluded the preliminary examination on the situation of Ukraine affirming the existence of reasonable grounds to believe that war crimes and crimes against humanity have occurred from February 2014 onwards in Ukraine (particularly in the Crimea region). After Russia invaded Ukraine in February 2022, the Prosecutor re-stated that the launched investigation would have “encompass[ed] any new alleged crimes falling within the jurisdiction [of the ICC] that are committed by any party to the conflict on any part of the territory of Ukraine”. Yet, the jurisdiction of the ICC, in this particular case, remains limited to war crimes, crimes against humanity and genocide, and does not involve the crime of aggression, namely the act of invading or attack by the armed forces of a State on the territory of another State”. Why is it so?
The crime of aggression was initially not defined (although included) in the 1998 version of the Rome Statute that established the ICC; and only in 2010, through the so-called Kampala Amendments, the State Parties reached an agreed definition of this crime (in line with the UN General Assembly Resolution 3314 (XXIX) of 1974), now incorporated in Article 8 bis. Nonetheless, the conditions according to which the ICC can exercise its jurisdiction differs from the other three categories of crimes mentioned above. According to Article 15 bis (5), the Court cannot exercise jurisdiction over an alleged crime of aggression if the responsible person is a national of a State that is not a Party to the ICC. Moreover, the Prosecutor could potentially start investigation towards an alleged act of aggression only if and when the UN Security Council (UNSC) has determined the existence of such act of aggression (ex Article 15 bis (6)) or when the Pre-Trial Chamber has authorised launching an investigation if the UNSC has not recognised the existence of the act of aggression six months after the event (Article 15 bis (8)). In the Ukrainian-Russian case, not only this six month-term already expired, but the ICC cannot exercise jurisdiction over the facts at stake, and therefore no Russian national can be charged with the crime of aggression in front of the ICC, since Russia is not a ratifying State to the Rome Statute; and regardless of the ad hoc acceptance of the jurisdiction by Ukraine.
The aggression is, however, not only considered as international crime within the ICC framework, as “the threat or use of force against the territorial integrity or political independence of any State” is explicitly prohibited by the Article 2 (4) of the UN Charter. In the 2022 Resolution (A/RES/ES-11/1), the UN General Assembly (UNGA) clearly referred to the Ukrainian-Russian situation as aggression and urged Russia to refrain from any further unlawful threat or use of force against any Member State. The “legal responsibility triggered by the Russian Federation aggression against Ukraine” has been further addressed by UNGA in subsequent Resolutions in which it recognised that Russia must be held accountable for its aggression against Ukraine. What are the chances that consequences will follow on the Russian aggression from a UNSC point of view? Basically none…as Russia is among the so-called “P5”, the permanent members of the UNSC with the veto power. However, a certain reaction from the UNGA can be somehow foreseen, namely through the establishment of an ad hoc/hybrid tribunal, a Special Tribunal on the Crime of Aggression (STCoA). Such a hybrid tribunal would/could be created through a specific request of the Government of Ukraine and upon a UNGA Resolution, the UN organ that reflects the will of the international community, in which all the UN Member States are represented, which will recommend to the UN Secretary General the establishment of such tribunal through negotiations between the interested State (Ukraine) and the UN as a whole. Interestingly to note is that in this kind of tribunal, immunities would not be enjoyed even by high ranked officials, such as the President of the Russian Federation.
But, let’s go back to the arrest warrants and the (potential) prosecution before the ICC. What are the chances that Mr Putin and Ms Lvova-Belova will be brought before the ICC? The two biggest obstacles to these arrests are immunity and the fact that the Court needs the national level and international cooperation for an effective prosecution of the crimes.
With regards to immunity, a distinction must be drawn between personal – or ratione personae or status-based immunities – and functional – or ratione materiae or conduct-based immunities. Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy personal immunity, which is conferred by reason of status as key representatives of the State and covers all acts undertaken in an official or in a private capacity during the term of office. This is the case of Mr Putin, as President of the Russian Federation. Functional immunity, on the other hand, attributes immunity to authorised representatives of the State when they perform an act of State. It can be applied to officials, functionaries, and employees of States to afford them immunity in respect of acts which are performed in an official capacity. This is the case of Ms Lvova-Belova who, as the Commissioner for Children’s Rights in the Office of the President, enjoys functional immunity.
This distinction is essential, because it has an impact on the actual prosecution of international crimes by the ICC. For instance, according to Article 27 (2) of the Rome Statute “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. This provision, thus, confirmed that, in principle, that the Court can exercise jurisdiction without waiting for a waiver of the immunity from State Parties. However, in the issue at stake, Article 27 (2) cannot be relied upon as a general waiver, because Russia, as a non-Party State, has not accepted the provision. As a result, even States Parties to the ICC, could oppose the immunity of the two individuals in question, and decide not to cooperate, when asked to do so to achieve the arrest of the two suspects. Indeed, States Parties to the ICC Statute deciding to cooperate with the Court and, therefore, satisfying the request of the arrest warrants in the case at stake, could incur in violations of international law as recognised by Article 98 (1) of the Statute itself, which provides that “[t]he Court may not proceed with a request for surrender or assistance which would require the requested State [the State Party] to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person […] of a third State [in this case the Russian Federation]”. In fact, although State Parties have an obligation to cooperate with the Court as specifically provided in Article 86 of the Statute, they might oppose immunity.
The difference between personal immunity and functional immunity comes into play at this point, as there is a widespread scholarly agreement that Article 27 (2) of the Rome Statute is declaratory of customary international law as far as functional immunities are concerned. No functional immunity exists under customary international law in case of proceedings for genocide, crimes against humanity, war crimes and crime of aggression. This conclusion encompasses State measures of arrest and surrender of a person sought by the Court, such as Ms Lvova-Belova. In the present case, therefore, States Parties cannot invoke functional immunity and they are internationally obliged to arrest Ms Lvova-Belova. Article 87 of the Statute deals with non-cooperation and provides that “failure [by a State Party] to comply with a request by the Court contrary to the provisions of this Statute” constitutes an internationally wrongful act entailing the State’s responsibility if no circumstance precluding wrongfulness can be invoked. The same Article 87 in paragraph 7 establishes a specific consequence of non-cooperation: the Court may inform the Assembly of States Parties (ASP), which considers any question relating to non-cooperation under Article 112 (2)(f), about the State failure to cooperate.
As for personal immunity, the issue becomes more complex. The ICC has struggled with claims of some States to the extent that the immunity and inviolability of acting Heads of State allows them to ignore an arrest warrant issued for a Head of State of a non-State Party to the Rome Statute, notwithstanding the general obligation to cooperate under the Statute. In particular, the case against Mr Al Bashir (against whom the ICC had issued two arrest warrants, respectively, in 2009 and 2010) former President of Sudan, clearly highlighted the contradictions and difficulties in the area of immunity and core crimes in the context of the ICC. The former Sudanese President’s travels to African States Parties to the Rome Statute - despite the arrest warrants in force against him - have produced important case law in this field. Indeed, ICC judges have made a number of decisions regarding the non-compliance of certain African States with the requests to arrest and surrender President Al Bashir. In 2017, Pre-Trial Chamber II decided to refer Jordan’s non-cooperation with the Court to the ASP and to the UNSC for the adoption of sanctions against the concerned State. In the case under analysis if the matter would have been referred to the ICC by the UNSC (as in the Al Bashir case), the latter could have also been informed of the States’ failure to cooperate and could – theoretically – proceed to consider appropriate sanctions against the responsible State. Jordan appealed the decision of the Pre-Trial Chamber and this resulted in the judgment of the Appeals Chamber on 6 May 2019. In this decision, after years of debate, the highest Chamber of the ICC clarified that Mr Al Bashir did not enjoy immunity as a Head of State vis-à-vis the Court under customary international law -contributing to the crystallization of a modern customary law, which represents an exception to the rule of absolute personal immunity in proceedings before the ICC and international criminal tribunals in general. This approach enables the Court to apply the rule that sets aside personal immunity to any proceedings, irrespective of whether the accused is a national of a State Party or not. When the obligation to cooperate stems from customary international law it applies erga omnes. In the present case, therefore, not only Ms Lvova-Belova, but also Mr Putin could not oppose his absolute immunity. However, despite this recent decision, questions relating to personal immunities accruing to senior State officials do not seem to have been settled satisfactorily in international law.
Nevertheless, it should be mentioned that the power of the Court to require a non-State Party to cooperate should also be seen in the light of two hypotheses. First, a referral from the UNSC to the Prosecutor of the ICC pursuant to Chapter VII of the UN Charter as recalled by Article 13 (b) of the Rome Statute, may oblige all UN Member States to cooperate with the Court. The binding nature of such a cooperation regime for States not Parties to the |Rome Statute would then stem from Article 103 of the UN Charter. When the obligation to cooperate stems from a decision of the UNSC, the obligation applies erga omnes. As a consequence, every UN Member State has a legal interest in cooperation with the Court. Therefore, the ICC might be considered to have, in this situation, a form of universal jurisdiction, subjected, however, to the Security Council control. Secondly, according to Article 1 of the four Geneva Conventions on international humanitarian law (1949) States Parties have an obligation to react by any appropriate means to any violation of a provision of international humanitarian law, even though the underlying act is not attributable to the State concerned. This duty has been confirmed and supplemented respectively, by Articles 1 and 89 of the First Additional Protocol (1977) to the four Geneva Conventions. The unlawful deportation or transfer of a protected person is a grave breach of the four Geneva Conventions, to which both Russia and Ukraine are parties. In these cases, some form of cooperation with the Court constitutes the only way for non-States Parties to discharge this obligation.
A merit of determining the existence of a customary rule consists in untying the jurisdiction of the Court from the uncertainty of a political decision of the Security Council to make a referral. Nevertheless, while the ICC Pre-Trial Chamber has repeatedly admonished African States for not arresting Al Bashir, the ASP and the UNSC have not yet punished any non-cooperating State. To conclude, it is hard to tell how and when this stalemate will be resolved. The ICC Appeals Chamber opted for the customary international law approach. In the present case, a State Party to the Rome Statute could arrest Mr Putin at the behest of the ICC. This may elicit a finding from the International Court of Justice (ICJ). The ICC, the ICJ, international governmental and non-governmental organisations, many States and the majority of legal scholars all concur that functional and personal immunities have no place before international criminal tribunals. However, there is far less agreement on how that position can be legally substained and whether that desirable situation has already been achieved.
Weeks prior to these arrests, news in the case was expected: it was known that arrest warrants would be issued, and it was speculated that they would be linked to crimes of unlawful deportation of children. What no one expected was that the warrant would be issued against the Russian President, Mr Vladimir Putin.
It is not common in international courts for arrest warrants to be issued to a sitting President or Head of State. The only cases are those of Slobodan Milošević, Charles Taylor and Omar Hassan Ahmad al-Bashir, former Presidents of the Federal Republic of Yugoslavia, Liberia and Sudan, respectively. Much less common is to be the first recipients of an arrest warrant in a case.
So, there is every reason to celebrate this courageous decision by the ICC Prosecutor, also bearing in mind that recent history has shown that arrest warrants against senior officials are generally issued when they have lost much of their power - which does not reflects Putin's current situation (notwithstanding the condemnation and sanctions imposed by a large part of the international community).
The questions that arise at this moment are the following: 1) Will the States Parties to the Rome Statute comply with the arrest warrants issued if Putin visits any of those countries? The ICC experience with al-Bashir is not very promising, but without a doubt, the answer will depend on two factors, namely Russia’s particular relationship with the State that Putin travels to (basically the commercial relations between the two and how much that State depends on Russia to survive); and the power that Putin continues to have at the time of the visit. 2) What will happen with the crime of aggression? Will a Special Court be created for this specific crime and will Putin be tried simultaneously by two international courts for different crimes?; 3) What impact will this decision have with respect to other great powers that are targeted by the ICC, such as the case of Palestine and Israel, or Afghanistan, where although the Prosecutor has decided to prioritize the crimes of the Taliban, those committed by the Americans are still part of the pending situation? And what does it show regarding closed preliminary investigations (such as the Iraq/British soldiers’ case) or others that have never even arrived at that stage?
The dilemma of the “selectivity of international justice” or “double standards” is undoubtedly one of the most problematic, but it will depend on us, on civil society in general, to pursue certain equity, namely justice in all places and in all cases, because as they say, justice that arrives late is not justice.
A cura di Serenza Zanirato, Nicole Zemoz e Tomas Manguel