Authors: Roman Kusaiko and Alexey Ilin*
On March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant against Russian president Vladimir Putin. The press release stated that Prosecution’s application was filed on the February 22, 2023, while the existence of the warrants was disclosed on March 17, 2023. This is the first time the ICC releases a warrant against a sitting president of the state possessing nuclear weapons. Moreover, it immediately preceded the visit to Moscow by Chinese President Xi Jinping, which took place on March 20-22, 2023. While the warrant is expected to force Russia and its leader into submission, the end result may be the erosion and eventual demise of the universal criminal justice.
Historical Cleavage
The International Criminal Court was established by the Rome Statute (done July 17, 1998, in force July 1, 2002) to prosecute the most serious crimes of international concern, such as genocide, crimes against humanity, war crimes, and the crime of aggression (Rome Statute art. 5). The ICC has three main advantages against its predecessors – the ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). First, it is a permanent court. Second, it is based on an international treaty and not the United Nations Security Council resolution, which gives it more legitimacy. Third, the ICC jurisdiction is not limited to a particular country or case – the Court can prosecute a crime if it was committed either by a national of a State Party, or on a State Party’s territory. Generally, officials of the non-party states cannot be prosecuted, but even this barrier can be overcome if the situation is referred to the Prosecutor by the UN Security Council (Rome Statute art. 13(b)).
France and the UK are the only State Parties to the ICC among those countries that legally possess nuclear weapons (under the 1968 Non-Proliferation Treaty). China, India, Pakistan and North Korea neither signed nor acceded to the Rome Statute while the U.S., Russia, and Israel officially refused to ratify the treaty. The attitude towards the Court reveals a divide in states’ perception of international criminal justice. Countries with extensive military capabilities decided not to delegate any of their judicial power to an external international institution. The rest of the countries delegated their authority to an international judiciary seeking justice in case any major crimes are committed against them.
Political Appropriation
Since its inception, the Court’s authority has been facing challenges, especially from the U.S. The latter has a long history of complicated relations with the ICC, from open hostility to the recent bipartisan support. Most prominently, the “Hague Invasion Act” grants the U.S. the right to use military force to liberate any U.S. or allied country’s citizen being held by the ICC. The existence of such methods undermines the authority of the Court and also manifests that the U.S. and its allies are “out of judicial range” and thus not accountable before the international community.
The ICC has been repeatedly stumbling in its attempts to investigate the most serious crimes in the areas where the U.S. and their allies conducted their military operations. Between 2014 and 2020, the ICC investigated the war crimes in Iraq (willful killing, torture, and rape) committed by the armed forces of America’s closest ally – the UK. Nevertheless, the investigation was closed in 2020 raising criticism from European institutions, non-government organizations and multiple media sources. Some critics claimed the ICC’s refusal to hold the UK accountable discredited the Court’s authority. Afghanistan has been a State Party to the ICC since 2003, but the Court has not taken any decisive actions in this country until October 2022, when its Pre-Trial Chamber authorized the Prosecution to resume its investigation of war crimes. This move has been first rejected in 2019, and then deferred in 2020. Likewise, the ICC Preliminary Investigation team has been halting the prosecution of war crimes committed in Syria for more than three years despite the ample evidence.
At the same time, reasonable grounds against Vladimir Putin for organizing an unlawful deportation of children were found in less than a month – an unprecedented speed. The disclosure of the ICC warrant on March 17, 2023 suspiciously coincided with the announcement of Xi Jinping’s official visit to Moscow. The announcement was made only on the 17th of March, 2023, with the agenda reported by both Chinese and Russian sources. It is hard to believe in such a coincidence, especially after subsequent remarks by the U.S. Secretary of State Anthony Blinken confirmed that the warrant targeted Chinese leader’s visit. While some media claimed Putin’s days are now numbered, the others were more skeptical referring to the West’s “deafness” for their own atrocities in Iraq and Afghanistan.
Further Clusterization
The ICC warrant sends several signals to the Russian state, society, and beyond. The first one is to oust Vladimir Putin from the office to improve relations with the West. The second one is for the Russian elites: as long as Putin is in power, their assets will be always under threat of sanctions and even confiscation. The third one is for the other world leaders: leaving Putin alone at the table will not be enough – legal actions should be taken against him. The Russian leader should become a pariah. One may argue, that such a strategy could be partially successful in 2014, but an open Chinese criticism of the warrant demonstrates that it will have serious limitations in 2023.
Vladimir Putin will not willingly step down, but the warrant will push his government to build parallel institutions with friendly or non-aligned countries. Russian State Duma Speaker Vyacheslav Volodin proposed to pass an act similar to the “Hague Invasion Act.” In addition, he prompted the Russian government to sign bilateral agreements which will guarantee the denial of the ICC authority. Moreover, the depth of the issues discussed between Putin and Xi suggest that Shanghai Cooperation Organization (SCO) could become an “umbrella” for alternative global institutions, including the judiciary branch. The SCO already hosts regular meetings between the chairs of the Supreme Courts. As more countries are willing to join in, it may become a respected institution of transnational justice. This development, amplified by U.S. unaccountable posture, will bury the once noble idea of global judiciary in The Hague. The ICC will remain what Rwandan President Paul Kagame called it, “the court for Africans and poor countries.”
*Alexey Ilin, Ph.D. candidate at Shanghai Jiaotong University.
