Interview with an Expert: The ICC Arrest Warrants on Putin and Lvova-Belova, Explained

International Criminal Court Building in The Hague, 2016

By: Karolína Hajná and Sofia Folgheraiter

Picture Credits: OSeveno via Wikimedia

On March 17, 2023, the International Criminal Court (ICC) issued arrest warrants for Vladimir Putin, the President of the Russian Federation, and Maria Lvova-Belova, the Commissioner for Children’s Rights in the Office of the President of the Russian Federation. Putin and Lvova-Belova have been charged with alleged war crimes of unlawful deportation and transfer of children committed in occupied Ukrainian territories.

We asked Dr. Tom Buitelaar to shed more light on the ICC warrant, its significance, its influence on the ongoing conflict, and its potential implications for peace processes in Ukraine. Dr Buitelaar is an Assistant Professor of War, Peace and Justice at the Institute for Security and Global Affairs at Leiden University. His research focuses on the interface between peacekeeping and international criminal justice, the role of norms in international interventions, and agency in peacekeeping. He is also the co-convener of the Dutch Peacekeeping Network which convenes NGOs, academia, and the Dutch Ministries of Foreign Affairs and Defense, to consider and improve the Dutch role in UN peacekeeping operations.

What does the warrant mean in practice and how much power does the ICC really hold over Putin and Lvova-Belova?

The key thing to know is that the ICC is a member state institution and a treaty court, which is only ratified by a certain number of states. The ICC only has jurisdiction and the capacity to act within the territory of its member states. The warrant that it issued was for crimes committed in Ukraine, which is not a state party but referred the situation within its borders to the jurisdiction of the ICC.

Another important point is that [the ICC] is completely reliant on its state parties and other actors such as NGOs and sometimes international organisations. It does not have a police force, so if it wants to collect evidence it cannot subpoena anyone. It is always dependent on its state parties, so the real impact [on Putin] is up for debate. In general, we can say that its impact and leverage is going to be limited, especially if it is against a state that is not a party to the Rome Statute, because [the ICC itself cannot] arrest Putin or the Children’s Rights Commissioner [Lvova-Belova].

Since the leverage is so limited, why did the ICC issue the warrants in the first place?

Apart from being a court of law, the ICC is also an international organisation that wants to have legitimacy and relevance. It wants to be seen as an effective player. In order to obtain money to operate, it has to demonstrate that it has some kind of relevance. In this conflict, which has grabbed the attention of so many (especially in the West, where the main supporters of the ICC are anyway), [the ICC] wants to be seen [in the sense that] “there is this ongoing conflict, we see war crimes being committed, we see all kinds of atrocities being committed, primarily by Russia, and we might demonstrate some kind of impact.” That is an organisational incentive to be seen as relevant.

A second thing is that [the warrants have] a certain symbolic relevance. In the end, for many the ICC is a court of law and justice, which only gets involved in the worst of crimes. If it issues a warrant against the leader of a state, it has a symbolic impact. It condemns the Russian war effort, shows that war crimes are being committed, and it might delegitimise Putin as an effective leader.

So [it is a] combination of having a symbolic impact, and maintaining relevance amongst the other initiatives going on which are supported by the international community to pursue war crimes in Ukraine.

Is the warrant issued on Putin somehow different from other warrants that the ICC has issued?

It has been issued against a sitting president. That has happened before in the case of Sudan, where warrants for war crimes, crimes against humanity and eventually genocide were issued against Omar al-Bashir, the President of Sudan, for what he and state-sponsored militias were doing in Darfur in the west of Sudan. We might see that as a comparable situation, but only to some degree, because ultimately Russia is  – or at least pretends to be – a major power. It is a permanent member of the United Nations Security Council and also a key member of the international order at the moment.

What is quite different here is that [the ICC] is taking a stand and acting in the context of a global power struggle between the West and Russia (and China, to some degree). It is entering into a very politicised arena, taking a stand against one of those actors.

Is it common that the ICC issues warrants for crimes which are still ongoing? Or is it that “justice” comes after the conflict has been terminated?

Previous tribunals (such as the Nuremberg tribunal or the Tokyo tribunal) were after the fact. They were for what happened and then after the investigations took place, the warrants were issued, and the trials happened.

The ICC almost always operates in the context of ongoing conflicts. It issues warrants against people that are actively involved in those conflicts. That raises issues with regards to peace negotiations or impacts on particular conflicts. It also makes it difficult to implement and execute these warrants. For example after the Second World War, Nazi and Japanese war criminals were mostly living in zones that were occupied by the Allies (unless they fled to Latin America), so [the investigators] had direct access to them and to the files. In these ongoing war zones, it is much more complicated to conduct proper investigations  and get warrants executed.

What are some of the potential political implications of this warrant?

The ICC hopes for a deterrent effect, which is one of the primary justifications of international criminal justice. There is a lot of scepticism about that, as is the case with criminal justice at the domestic level – if someone gets punished by a court of law, is it actually going to deter future violations? But [deterrence is] a potential effect.

The other impact is on the legitimacy of the different actors in the conflict. As I already mentioned, a criminal justice institution has publicly accused the Russian president of committing war crimes, and that has a significant political effect. Now, the downside of that is that this global power struggle is potentially becoming more and more politicised.

Finally, one effect that we have not discussed yet is the effect on the conflict. In these ongoing conflicts, justice is going to be an issue of discussion. In peace negotiations, having a warrant hanging over one of the actors’ heads is going to be a potential issue.

Can we expect any practical consequences for the development of the conflict in Ukraine?

It is largely speculative. There are a couple of scenarios. One of them is that it is going to do nothing at all, because there is already so much Western unity in delegitimising Putin and framing him as the antagonist. That narrative is already there. Additionally, the conflict is still ongoing and there are no major ongoing negotiations (at least that we know of), so the warrant is not going to make much of a difference. That is one scenario.

The other scenario is that it might make peace negotiations more complicated. This might serve to underline Ukraine’s demands for reparations and justice for war crimes. It might also make Putin less willing to concede to negotiations because there is this issue of the ICC warrant hanging over his head, and he might want to have this removed before participating in negotiations.

The final potential effect is that the warrant might make the negotiations more likely, because it might delegitimise Russian war efforts to such a degree that Putin eventually gets removed. This is very speculative and unlikely, but a potential outcome is that he becomes further delegitimised on the domestic scene and is removed from power. His replacement may be more willing to negotiate with the Ukrainians. He might even offer up Putin as a part of negotiations.

How likely do you think this last scenario is?

I do not think it is that likely to be honest. If we look at the conflict in Sudan or Kenya as examples, sitting presidents had been indicted before they became president, but then they stayed in power even with the warrants issued against them. It is more often the case that the warrant can be used as a rallying cry: “Western institutions are attempting to undermine us. First the sanctions and now the ICC is politicised against us – it is a part of a broader Western effort.” Putin could then be seen as the only one defending [Russia] from the immoral West.

It is, however, possible that due to other reasons there might be some kind of domestic revolt against Putin that is actually successful and gets him removed from power. The ICC warrant is already there and it might be convenient as a way to scapegoat him.

During the war we have seen some competing narratives (e.g., Russian media propagating disinformation regarding ongoing events). Do they also use the warrant to support the portrait of the West as a threat?

It is more a matter of Russia not recognising the court. [The warrant] does not seem to even play that much of a role in Russian media. As far as I am aware, [the warrant] is not viewed as the meaningful event that the Western world thinks it is.

It is a good point that you are making though. We see [this warrant] as a significant event. In actual conflict processes and domestic politics, [the ICC] often has a much more limited role. We often have the tendency to see [the ICC] as a panacea. However it often plays a very marginal role because of its limited power.

We already mentioned that this topic is important because it is politicised and because it might have implications for the peace processes. Because [the unlawful deportation of children] was such an “easy” crime to prove, could it be stated that the ICC was perhaps too quick in issuing a warrant that might actually have negative implications for the war?

The simple fact is that we do not know yet. I think there are two opposing arguments to be made, and I would be more in favour of the latter. You could argue that these crimes have happened. Justice delayed is justice denied. We need to demonstrate that these actions are not tolerable and we need to stop them from reoccurring. So the imperative upon us now (especially if we have the evidence) is not to wait with the investigations and warrants until afterwards, because you never know what is going to happen to the evidence and witnesses. It also shows that these crimes are taken seriously, which is very important for all the parents of the children who have been forcibly removed.

The other argument to be made is more utilitarian in a sense that: “what are the consequences going to be at this moment?” There is little to no chance that Putin is going to be arrested, and the potential isolation effects [introduced by the warrant] are likely to be quite limited. In the end, he is the President of Russia. The likely impact is going to be very limited, and as you mentioned, it might be a possibility that it is going to undermine peace negotiations and therefore prolong the fighting. You might then wonder whether [the warrant] is not purely symbolic at the moment, and the ICC is only showing the world its importance.

An argument might be made, which I am not entirely against, that it would have been better to wait until the war was over, or until the situation has changed, and you could do more to “get the guy” into the docket.

The ICC just cannot win, because whatever it does it is going to be seen in a negative light. If it reacts too late, they will say, “You delayed this for political reasons. I thought you were a court of law”. If they [react quickly], they will say, “You are disregarding the political consequences of your actions.”

There has been a history of the ICC expanding warrants. Will this also happen in this case? What other allegations could potentially be made?

We do not know. With this particular crime, that is the forced displacement of children, it is relatively easy to gather proof because of its large scale. For instance, there are videotaped discussions between Putin and [Lvova-Belova] about how they are going to do it.

If the warrant is expanded against Putin, they will have to show that he is actually responsible for what the Russian soldiers did in Ukraine. What often happens is [the Russians] are going to claim that these are “bad apples” that are not part of any kind of systematic policy.

[The ICC has] to prove that it was Putin who either directly gave these directives or was aware of what was happening and did not take action to prevent it. This is something called “command responsibility” – a commander of military forces needs to be aware of what their forces are doing, and has to intervene if [the military forces] are committing crimes. This is always very difficult to prove, leading to discussions about whether the ICC has sufficient evidence to make a solid case against Putin.

Previously you mentioned that the ICC already supports other activities related to crimes against humanity in Ukraine. Do you have any examples?

A key principle of the ICC is  “positive complementarity,” which stipulates that it is a court of last resort, so it is only going to step into the fray when national courts cannot (or will not) prosecute crimes themselves. It is only in that case that it goes up to the international level and the ICC might step in. With positive complementarity, they are trying to support national jurisdictions to prosecute crimes themselves. They have several cooperation activities with the Ukrainian authorities to strengthen their capacity to do the investigations and get fair trials.

They have investigators that are going to crime scenes, normal fact gathering as police investigators would do. They are also using open-source intelligence, gathering videos and social media posts, and trying to prove that certain people were actively perpetrating the crimes that they are accused of, as well as which units they were in, etc. Most importantly, the investigators gather evidence through testimonies and interviews with witnesses.

Prosecutor Luis Moreno Ocampo, who was the first prosecutor of the ICC, once said: “The best thing for the ICC is if there is no need for the ICC anymore.” That would mean that either there are no war crimes and war (which would be the best), or that domestic authorities are investigating war crimes and prosecuting them themselves.

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