The International Criminal Court’s groundbreaking arrest warrant for Russian President Vladimir Putin should not be dismissed as merely symbolic. It is a historical first step and an important one toward accountability and justice for Ukrainian victims.
The actual indictment on the current charge of war crimes in Ukraine has yet to follow, as well as likely further charges of genocide and crimes against humanity. Prosecutor Karim Khan said, “We will not hesitate to submit further applications for warrants of arrest when the evidence requires us to do.”
A panel of ICC Judges granted the prosecutor’s request for warrants, saying that there are reasonable grounds to believe that both Putin and Maria Lvova-Belova, the Russian Commissioner for Children’s Rights, bear individual criminal responsibility for “unlawful deportation [and] unlawful transfer of children” from the occupied territories and that Putin also bears individual responsibility for his failure to exercise control over those who perpetrated those acts and were under his effective authority and control.
Kyiv reports the number of children taken to exceed 16,000 and ICC Prosecutor Khan says that his office has identified “the deportation of at least hundreds of children taken from orphanages and children’s care homes,” many of whom have been given for adoption. Lvova-Belova herself adopted a 15-year-old Ukrainian boy.
Under the Convention on the Prevention and Punishment of the Crime of Genocide, to which both Russia and Ukraine are parties, genocide includes “[f]orcibly transferring children of the group to another group” when done “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” And Russia has repeatedly stated the intent to wipe out Ukrainian identity. Russian crimes against humanity include “widespread or systematic” attacks against a civilian population, murder, torture, and rape or sexual violence. What about accountability for the crime of aggression, which Russia has blatantly committed? The ICC doesn’t currently have jurisdiction over the crime of aggression, and hence, options for a special tribunal are being explored.
Although Russia is not a party to the ICC treaty, Ukraine has twice accepted the court’s jurisdiction over crimes committed on its territory, which suffices. Still, there is only a slim chance that Putin will be brought before it for trial on these charges, even though the court mandates that its 123 members surrender an indicted defendant. However, it obviously limits Putin’s diplomatic freedom, including the freedom to travel in any of those countries.
The ICC’s decision has broader legal and political implications. This is the first time a sitting president of one of the five permanent members with a veto in the U.N. Security Council faces indictment. The arrest warrant is a strong deterrent to Russian soldiers, officials, and functionaries involved in the war. It will also make it difficult for anyone to dismiss the Ukraine-Russia conflict as a “territorial dispute.”
President Joe Biden said the ICC’s case against Putin “makes a very strong point,” and that it is justified because Putin has “clearly committed war crimes.” But the U.S. is not an ICC member and, while the American Servicemembers’ Protection Act limits the U.S. cooperation with the ICC, 2023 amendments to the Act allow the U.S. to cooperate with “certain investigations and prosecutions of foreign persons for crimes related to the situation in Ukraine.” Consequently, while there is currently an impasse between the Pentagon and the State Department about sharing evidence with the ICC about Russian atrocities in Ukraine, such as the targeting of civilian infrastructure and the abduction of Ukrainian children from occupied territory, the Department of Defense must not refuse to provide evidence to the ICC directly related to the crimes under investigation.
Russia has rejected the allegations and its top investigative body said it has opened a criminal case against the ICC Prosecutor and judges who issued the warrant. Notwithstanding Russia’s symbolic defiance, the court’s arrest warrant is significant. This landmark decision is a powerful signal to perpetrators of international crimes that no matter who or where they can and will be held accountable.
Ved Nanda is Distinguished University Professor and director of the Ved Nanda Center for International Law at the University of Denver Sturm College of Law. His column appears the last Sunday of each month and he welcomes comments at vnanda@law.du.edu.
