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  • Divyanshi Shukla and Vidushi Jaiswal

ICC’S Warrants Against Putin:Addressing Gaps in International Law with respect to ICC’S Jurisdiction

This article is authored by Divyanshi Shukla and Vidushi Jaiswal pursuing their second year B.A. LL.B. (Hons.) at National Law Institute University, Bhopal.


Introduction

“We cannot allow children to be treated as if they are the spoils of war.”

- Statement by Prosecutor Karim A.A. Khan KC


On 17th March 2023, Pre-Trial Chamber II of the International Criminal Court (ICC or Court) issued warrants of arrest for two individuals in the context of the armed conflict in Ukraine: Russian President, Mr. Vladimir Vladimirovich Putin and Russian Children’s Rights Commissioner, Ms. Maria Alekseyevna Lvova-Belova. This means that the authority of the Court has been brought into question again, with this historic decision. However, there are several gaps in the jurisprudence that makes it difficult for the ICC to implement its orders against Putin, as indicated by Russian spokesperson Maria Zakharova, wherein she said, “the decisions of the ICC have no meaning for our country, including from a legal point of view.”


This article aims to shed light on the apparent gaps in the implementation of the Court’s authority over Non-State Parties. It analyses the situation of issuance of warrants in the case of Russia with respect to the settled jurisprudence in international law and further discusses the solutions that can be put forth by the international community, specifically India. It also discusses the interaction between the United Nations Security Council (UNSC) and ICC where the UNSC strengthens the authority of the Court in holding even the non-State Parties accountable.


Settled Jurisprudence

The settled jurisprudence in international law does not vest unfettered powers and rights in the ICC to hold the actors responsible for their wrongful conduct. The whole idea of the legal justice system that is embedded in the Court depends on the extent and level of cooperation offered to it by governments so that it can function successfully and carry out its role. States that are not parties to the ICC are also included in this cooperation.


Cooperation under the Rome Statute and UNSC

The ICC, which derives its mandate from the Rome Statute, is a permanent international court to prosecute the criminals for the most serious crimes whether committed in their territories or by their people in other regions. Since the ICC does not have its own police or institutional regime to hold the perpetrators accountable for their atrocious acts, duty to cooperate by the international community becomes paramount for strengthening the mandate of the Court. This duty to cooperate differs for State Parties and non-Party states.


This is because State Parties are bound to cooperate which does not leave room for them to evade the Court’s jurisdiction. A broad clause relating to state cooperation and judicial assistance is found in Article 86 of the Statute. This clause mandates the State Parties to “co-operate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’’ The duty to cooperate by the State Parties also finds a mention in Treaty law and Article 35 of the Vienna Convention on the Law of Treaties (VCLT) states, “an obligation arises for a third State from a provision of a Treaty if the parties to the Treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.” Further, according to Article 34 of the VCLT, a Treaty cannot impose obligations or rights on a third state without that third Party’s assent. Thus, as aforesaid, while State Parties are under an obligation to present cooperation requests and cooperate with the directions of the ICC, Non-State Parties may only be invited to cooperate.


Russia has always tried to escape from the clutches of the ICC by using its Non-Party status as an excuse. Recently, the ICC issued warrants against Mr. Vladimir Putin on violation of Article 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute for the war crimes of unlawful deportation of people (children) and unlawful transfer of population (children) from the occupied areas of Ukraine to the Russian Federation. Similar charges were levelled against Ms. Maria Belova. They were also charged with individual criminal responsibility under Article 25(3)(a) of the Statute. Nevertheless, Russia has refused to surrender to its grave actions by not accepting the Court’s jurisdiction.


However, when the Court’s authority is analysed conjointly with the authority of the UNSC, the jurisdiction of the ICC seems to bring even the Non-State Parties under its ambit. When the UNSC recommends a problem to the ICC, interaction between the two organisations begins. The UNSC establishes the basis of this interaction through referrals made to the Court. These referrals help the Court exercise its jurisdiction even on the Non-State Parties.


Cooperation under international humanitarian law- Geneva Convention

Both the 1949 Geneva Conventions and the Rome Statute have a strong relationship with regard to war crimes. Furthermore, nearly all the states of the world have ratified or acceded to the 1949 Geneva Conventions, which have indisputably become a part of customary international law. In any case, the duty to cooperate should be interpreted as requiring Non-Party States to try not obstruct the ICC’s efforts to punish or stop grave violations of the Geneva Conventions at the very least. If we look at the observations in the Nicaragua case, the Court therein noted, “there is an obligation on the United States Government, in terms of Article 1 of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances.’” ‘Ensuring respect’ means that all states, whether or not they are involved in a conflict, must do everything within their power to ensure that everyone, especially the conflict’s participants abide by the rules.


In light of the aforesaid discussion, a perusal of Article 50 of the Geneva Convention makes it clear that it mandates states to take all necessary actions to make ‘child identification’ and ‘parentage registration’ easier. In any case, states are not to alter their current situation or enlist them in formations or organisations that are beneath it. In the present scenario, Russia has hardly taken any such measures. On the contrary, it has unlawfully deported and transferred around 16000 children. However, the current system does not seem to penalise it for the same.


Analysing Gaps in the Implementation

The issuance of warrants by the ICC does not mean that Vladimir Putin or Maria Belova will be out of power, extradited or even indicted anytime soon. Since Russia is a Non-State Party, even if it fails to co-operate with the ICC, the ICC Assembly of States Parties does not have the authority or capacity to censure it or ask Russia to assume state responsibility. Even under the general principles of international law, there is no direct or binding obligation of Russia to follow the ICC warrants. Due to this reason, the authority of the Court came to be questioned since those who are accused of serious crimes, such as Putin, can evade trial and punishment owing to them being Non-Party to the Treaty.


Personal Immunity of Incumbent Heads of State

Russia can decline to enforce the ICC warrant by enforcing the immunity for Heads of State. Doctrine of Head of State immunity was developed in the case of Democratic Republic of the Congo v Belgium. This case suggests that “heads of the state have ratione personae immunity for public acts done whilst in office.” There is abundant state practice to show that this rule is well-established in the international law.[i] Moreover, Article 17 of the Rome Statute is based on the principle of complementarity, according to which, the jurisdiction of the ICC is not superior to that of the states. Hence, Russia can rely upon precedents to escape prosecution of Putin and Maria Belova.


Furthermore, there have also been instances where states have not complied with the warrants issued by the ICC. In the case of Prosecutor v Omar Hassan Ahmad al-Bashir, South Africa did not comply with the warrant for the arrest of Omar al-Bashir, the incumbent President of Sudan, for various war crimes and crimes against humanity. Similarly, in the case of Prosecutor v Gaddafi, Libya did not authorise the warrant to arrest Muammar Gaddafi, the then incumbent President of Libya. Both South Africa and Libya cited the reason that they are Non-States Parties to the Rome Statute and their head of state enjoys immunity from prosecution. These prosecutions against them were indeed made effective, however, only through UNSC Resolutions 1593 and 1970 respectively. So, the question that arises is, can a UNSC resolution bar Russia as well?


UNSC Resolutions: How Effective are they for Russia?

UNSC derives its authority from Article 25 of the UN Charter which states that all the decisions made by the UNSC are binding on all the member states of the UN. The implementation of prosecutions against Putin through UNSC Resolution is not likely because Russia is a permanent member of the UNSC and a negative vote from any one of the five permanent members of the Council stops action on any measure put before it. Therefore, it is most likely that if the UNSC takes action against Putin, Russia will simply veto against it and stop it. Therefore, due to its permanent membership in the UNSC, it is difficult to hold Russia accountable.


Conclusion and Way Forward

The Court’s President, Piotr Hofmanski noted, “the ICC is doing its part of work as a court of law. The judges issued arrest warrants. The execution depends on international co-operation.” The issuance of warrant by the ICC is significant as it can act as a ‘wake-up call’ to others committing abuses or covering them up. The foregoing analysis shows the ambiguity in implementation of warrants passed by the ICC due to non-compliance of Russia. Russia’s powerful position in the UNSC makes these provisions of ICC a toothless tiger with regard to dealing with the serious violations committed by Putin, and makes this just another empty chase between the ICC and Putin.


Therefore, the gaps in implementation have to be filled in order to prevent such horrendous crimes to take place in future. While a State may not have acceded to the ICC, it should still be subject to an obligation to co-operate with it in certain cases like crimes against humanity and other humanitarian crimes. Furthermore, the power to veto should be taken away from the five permanent members of the UNSC if the UNSC resolutions concern that State.


Not only these, but the situation is also an interesting test for countries like India and China, which want to see themselves as major international players. Talking about India, which is looking forward to the 17th G20 Heads of State and Government Summit this year where Russia is also an invitee, India can either allow Putin to attend the summit or cancel his invitation after the current turn of events. India should consider cancelling his invitation as it is already walking a tightrope by taking the “strategically independent” stand in the Russia- Ukraine war. India has even abstained from voting in UNGA resolution to end the war and because of that, the West is already upset. Hosting G20 is a positive step towards advancing India’s national interest in global politics and India should not risk this by allowing Putin to attend the G20 Summit.


Lastly, the instant issue also presents an interesting test for the global players, as cooperation from global key players plays an important role. The degree of political, industrial, and civil society awareness of the issues; the level of stakeholder engagement, and the level of regulatory competence will all play a role in this issue. Only time can tell as to how the present case would unfold.



[i] Muammar al-Ghaddafi (2004) 125 ILR 456 (French Cour de Cassation); Fidel Castro [Spain, Audiencia Nacional] No 1999/2723, 4 March 1999; Tachiona v Mugabe and others 169 F Supp 2d 259 (United States District Court, 2001); ‘The Belgian Court of Cassation v. the International Court of Justice: the Sharon and others Case’ (2003) 1 Journal of International Criminal Justice 437; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3, 24 [58] (‘Arrest Warrant case’).

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