The ICC and Putin: Why has Putin been Indicted
On Friday, 17 March 2023, the International Criminal Court (ICC) issued arrest warrants for Vladimir Vladimirovich Putin, President of the Russian Federation, and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. The ICC’s Pre-Trial Chamber II confirmed that there are reasonable grounds to believe that both President Putin and Commissioner Lvova-Belova have violated the Rome Statute, specifically article 8(2)(a)(vii) regarding unlawful deportation or transfer or unlawful confinement and, article 8(2)(b)(viii) which concerns the taking of hostages. These are prohibited under Article 49 of the Fourth Geneva Convention concerned with the protection of civilian persons, in this instance Ukrainian children.
As Ukraine is not a signatory to the Rome Statute it cannot refer situations to the ICC itself, but it has cooperated with the ICC before. On two previous occasions it has accepted the Court’s jurisdiction over alleged crimes under the statute occurring on its territory in the Donbas and Crimea dating back to 2014. Russia is also not a signatory to the Rome Statute which means the ICC has no jurisdiction over the state or its citizens when they are outside of member states’ territory. However, this does not preclude the ICC’s ability to investigate and indict individuals, nor does it prevent citizens of non-member states from participating in investigations.
The Investigation
Prosecutor Karim A.A. Khan QC announced an investigation on 28 February 2022, and forty-three states that are party to the Rome Statute referred the situation in Ukraine to the ICC during March and April 2022 as well. A formal investigation was opened on 2 March 2022 with the focus extending back to 21 November 2013 to encompass the duration of Russian occupation of Ukrainian territory. The investigation revealed that hundreds of Ukrainian children have been taken from orphanages and care homes and transported to Russian territory. The Prosecutors Office alleges that many of these children have been placed in foster care or adopted by Russian families. Additionally, it cites Presidential decrees issued by President Putin in 2019 and 2022 that expedited the conferral of Russian citizenship to people born in or residing in the Donbas and Crimea. The Prosecutor alleges that these demonstrate intent to permanently remove the children from their country of birth.
Additional Evidence
Some supporting evidence comes from Russia itself. Ten days after the invasion began President Putin and Commissioner Lvova-Belova had a meeting where the issue of adoption and citizenship for Ukrainian children was raised. Lvova-Belova travelled to Donetsk, Luhansk, Crimea, Zaporizhzhia, and Kherson since to discuss the issue of Ukrainian orphans or children in Russian foster families. All of this is documented on her government webpage. A photo of her arriving by plane in Moscow with 77 Ukrainian orphans ready to be adopted is accompanied by more information on another 23 children arriving by train, and 25 to be adopted in the border regions of Belgorod, Kursk, and Rostov. Lvova-Belova has also adopted a Ukrainian boy from Mariupol herself.
International Human Rights organisations have gathered testimony and data on the issue. The ICC’s allegations came two days after the UN Human Rights Council published a report by the Independent International Commission of Inquiry on Ukraine. It included a standalone section on the forced transfers and deportations of children. Additional investigative reports by Human Rights Watch, Amnesty International and Yale University’s Humanitarian Research Lab support the ICC’s conclusions. The United States Embassy in Ukraine issued a Press Statement in July 2022 by Secretary Antony J. Blinken describing ‘[T]he unlawful transfer and deportation of protected persons’ as a ‘grave breach of the Fourth Geneva Convention’ and ‘a war crime.’.
The Ukrainian Ministry for Reintegration estimates that 4,390 orphans and children from special institutions for those without parental care are currently in Russia or Russian-occupied territories of Ukraine. It also estimates that 19,528 have been deported with only 327 returned during the period 24 February 2022 - 30 March 2023.
Russian State Response
On 20 March 2020, Russia’s Permanent Representative to the UN Vasiliy Nebenzya claimed that Russia sought to protect the children from the danger posed by military activity. He claimed that when conditions were safe enough the children would be returned and that the issue was ‘overblown’. The Ministry of Foreign Affairs Spokeswoman Maria Zakharova has also described the deportations as ‘evacuations’. She dismissed the West’s concern as ‘a sham’ and ‘hypocritical’ suggesting that underage Ukrainian refugees in European countries face ‘marginalization … up to sexual abuse and sex trafficking.’.
Kremlin Spokesman Dmitry Peskov declared the warrants ‘null and void’ due to the ICC’s lack of jurisdiction. Security Council Deputy Chairman Dmitry Medvedev went further asserting that the warrants had ‘no practical value … But the consequences for international law will be disastrous.’. He then issued a thinly veiled threat urging the judges to ‘watch the skies closely.’. President Putin has made no public comment as of yet, but Commissioner Lvova-Belova told journalists that "It's great that the international community has appreciated this work to help the children of our country: that we don't leave them in war zones, that we take them out,’.
Ukrainian State Response
President Zelensky described the warrants as ‘… a historic decision that will lead to historic responsibility.’. General Prosecutor Andriy Kostin described them ‘prologue’ to full accountability but one that sent a ‘clear signal to the whole world that the Russian regime is criminal,’. Andriy Yermak, Chief of Presidential Staff tweeted, ‘It’s just the beginning.’. A number of domestic investigations are ongoing in Ukraine gathering information and evidence of suspected war crimes and crimes against humanity, reflecting the Ukrainian position that further charges should be brought against the Russian state and military.
What Happens Now?
In the immediate future, nothing is likely to happen. The ICC has no power of arrest and cannot exercise its jurisdiction outside of member states. To avoid arrest Putin and Lvova-Belova simply have to avoid travelling to (or accidentally becoming stranded in) countries that are a party to the Rome Statute. In total, 123 countries are signatories leaving 70 under no obligation to enact the warrants. Political isolation and international sanctions already restrict President Putin’s movements. He is unlikely to travel beyond safe territories, and Foreign Minister Sergei Lavrov can still travel as his representative across the globe. There is no need for Commissioner Lvova-Belova to leave Russia or Russian-occupied territory to carry out her job.
The arrest warrants will only have an impact on Putin if the political situation in Russia changes considerably. Constitutional amendments passed in 2020 grant Putin immunity, even after he leaves office. It would take a seismic shift in Russian domestic politics for him to be handed over to the ICC for trial, but the fate of Slobodan Milošević shows that this is possible. Pressure from the international community upon the new government led the Serbian prime minister to overrule a ban on extradition, handing the former president over to the Hague for trial. The most likely effect will be on those around Putin, many of whom are already subject to international sanctions. The arrest warrants may cause them to further distance themselves. This would reduce his access to capital and damage his domestic influence.
What happens Next?
Identification and repatriation of the deported children will be necessary and complex, and the international community should help the Ukrainian state to undertake it. So far only 327 out of an estimated 19,528 missing or deported children have been returned. Personnel and finances need to be made available to facilitate efforts to trace the children, and pressure placed on the Russian State to cooperate. Resources also need to be made available to address the children’s psychological, medical and housing needs either in Ukraine or externally if appropriate.
Further referrals from member states are needed to enable the ICC to consider new investigations. Ukraine is clear in its belief that additional charges for war crimes are needed. Evidence found at Bucha after it was liberated, allegations of the use of white phosphorus, and accounts of rape and extrajudicial shootings suggest there is a need for more investigations. General Prosecutor Kostin estimates that 11,000 war crimes have been committed in the Kyiv Region alone. Additionally, the international community can send experts and resources to help the Ukrainian state gather and preserve evidence for domestic prosecutions or in preparation for possible further ICC investigations.
The ICC’s arrest warrants are a key first step in holding President Putin accountable but Ukraine’s allies need to begin to consider how to hold Russia accountable as well. Reparations and the transfer of frozen assets to aid in the rebuilding of Ukraine should be considered. Clear consequences for the state must be articulated, not just for certain individuals. Russia cannot be allowed to remain a threat to Ukraine or other countries after the war. All Russians should understand how grave the situation is for their country, not just for their president.