Lara Kajs | 17 March 2023
The International Criminal Court (ICC) in the Hague, has issued arrest warrants for President Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation.
Mr. Putin and Ms. Lvova-Belova are each allegedly responsible for the war crimes of unlawful deportation of children and unlawful transfer of children from occupied territories in Ukraine to the Russian Federation under Articles 8 (2)(a)(vii) and 8 (2)(b)(viii) of the Rome Statute. The warrants deem that the crimes were committed in Ukraine from 24 February 2022, and are considered to be still ongoing.
Pretrial Chamber II of the ICC determined that there are reasonable bases to believe that Mr. Putin bears individual criminal responsibility, for having committed the acts directly, jointly with others, and through others, citing Article 25(3)(a) of the Rome Statute. It is also reasonable to consider that Mr. Putin is responsible for his failure to exercise proper control over civilian and military subordinates who committed the acts or allowed for their commission, and who was under his effective authority and control pursuant to Article 28(b) of the Rome Statute.
The warrants were initially intended to be kept secret. However, given that the crimes are ongoing, the Prosecutor determined that it was in the public’s best interest and safety, that the warrants were made public, to prevent the continuance and further commission of crimes.
ICC Chief Prosecutor Karim Khan said, “Ukraine is a crime scene that encompasses a complex and broad range of alleged international crimes.”
Forcibly Transferring Children
According to Human Rights Commissioner Liudmyla Denisova, of the Ukrainian Parliament, there are at least 200,000 Ukrainian children missing.
Children were taken from orphanages and children’s homes in Ukraine, deported, and transferred to an intake camp in the Russian Federation. Many of these children have since been given up for adoption in Russia. In Russia, the law was changed, through Presidential decrees issued by Mr. Putin, to expedite the conferral of Russian citizenship, and to make it easier for children to be adopted by Russian families. The actions by Vladimir Putin, demonstrate an intention to permanently remove these children from their own country.
One of the elements of genocide is forcibly transferring children (FTC) from one group to the other group. Under the UN Convention on the Prevention and Punishment of Genocide (UNGC), it is forbidden by international law for warring powers to transfer civilians from the territories they live in, to other territories. Children specifically enjoy special protections under the Fourth Geneva Convention. Children cannot be considered or treated as the spoils of war.
But, the law must protect the most vulnerable. It is not inconceivable that future charges could include crimes against humanity in Ukraine, and crimes of aggression, including targeting civilians. The charges involving the deportation and transfer of children are significant because such crimes are elements of genocide, under Article 2 (e) of the UNGC. The ICC may very well be in the process of building a case and charging genocide.
Previous Removal of Children
It is interesting that the brief included a reference to the fact that most of the acts included in the evidence were carried out in the context of the acts of aggression committed by Russian military forces against the sovereignty and territorial integrity of Ukraine, which began in 2014. This may indicate that Russia was forcibly transferring children during the previous invasion of Ukraine when it seized Crimea.
Authority of the ICC
The ICC is an independent, permanent judicial body. It was established on 17 July 1998 in accordance with the Rome Statute. Its ability extends to all the most serious international crimes committed after 1 July 2002. The Court’s jurisdiction is limited to genocide, crimes against humanity, war crimes, and crimes of aggression.
During the first 20 years of operations, the ICC tried and resolved cases of significance for international justice including the crimes committed by the use of child soldiers, destruction of cultural heritage, sexual violence including rape as a weapon of war, and attacks on innocent civilians.
Neither Russia nor Ukraine is a party to the Rome Statute. Though Russia was a signatory to the Rome Statute, it rescinded its signature when the ICC determined that its invasion of Ukraine in 2014 was an armed invasion and armed conflict.
While the ICC does not have its own policing force or ability to serve warrants, it counts on its member countries to stand by its obligation to uphold international law. Still, the ICC carries a lot of weight and power when it comes to countries and leaders it deems are war criminals or countries hiding war criminals.
Apprehending a Sitting Head of State
Charging and apprehending a sitting head of state is not a simple thing. Russia’s president is only the third head of state to be indicted by the ICC while still in power. The previous two were Sudan’s Omar al-Bashir and Libya’s Muammar Gaddafi. The indictment against Gaddafi was withdrawn due to his death. However, Omar al-Bashir absconded from justice for more than a decade.
In 2009 and 2010, the Court issued arrest warrants for the then-president of Sudan Omar al-Bashir for genocide, crimes against humanity, and war crimes committed in Darfur. For nearly thirteen years, al-Bashir traveled freely and continued his crimes until he was overthrown in 2019 and imprisoned in Sudan for corruption. He will likely be handed over to the Hague to stand trial for crimes against humanity, genocide, and war crimes.
But Vladimir Putin may not have as easy a time evading justice as al-Bashir. Although Putin will not likely see the inside of a cell soon, the arrest warrant will impede his freedom of travel and leisure, outside of Russia. And other than China’s Xi Jinping, being indicted for war crimes will not make him popular with other world leaders. Countries who are signatories to the Rome Statute are obligated to extradite him to the Hague and to hand him over to the Court to face trial as a war criminal. In theory, Putin could land in any country not aligned with the ICC. Those countries would not be in conflict with international law, in theory. However, should a country be looking to score some international points – he could still be handed over to the Hague. Putin can try to extend his freedom, but eventually, someone will hand him over.
No one can dodge justice forever. Former Serbian President Slobodan Milosevic realized his day in court in the Hague facing war crimes, however, he died of heart failure during his trial. But his last days were in a cell, so there was some justice in that.
The ICC Chief Prosecutor Karim Khan is very direct when he says that “nobody should feel they can act and commit genocide, or crimes against humanity, or war crimes with impunity. The human impact of the illegal deportation of children from Ukraine is clear throughout Ukraine. Those responsible for these crimes must be held accountable and the children must be returned to their families and communities.”
Let’s hope the ICC does not stop with Putin but continues on to Syria. Mr. Assad, are you paying attention?
Photo Credit: “Permanent Premises of the International Criminal Court” by United Nations Photos. Licensed under CC by NC-ND- 2.0