On March 17, the International Criminal Court (ICC) issued an arrest warrant for Putin and the Russian official Lvova-Belova, who allegedly oversaw the forced deportation of more than 16,000 Ukrainian children to Russia. But how easy is it to arrest an incumbent president? Does this decision have any effect? The answers to these questions are curious…
The ICC can only use its jurisdiction for serious crimes such as war crimes, crimes against humanity and genocide committed in countries that have signed and ratified the ICC’s Rome Statute. Russia is a country that has not signed and ratified the Rome Statute, so the ICC does not have the power to arrest or prosecute Russian citizens like Russian leader Vladimir Putin.
Well, what kind of scenarios can we see after this decision of the court, even though all this is known? Hacettepe University Faculty of Law International Law Lecturer Dr. Onur Uraz answered the questions behind the decision of the ICC.
“The ICC is on its way to becoming a legal weapon”
Before this decision, it is also important for whom the ICC has taken such decisions before. For example, war crimes committed in Iraq and Afghanistan… Uraz states that senior state officials, especially George W. Bush and Tony Blair, were not on the court’s radar.
In addition, although he is not a member of the court, he has also made decisions for Turkey. So much so that the accusation that the legitimate international operations carried out against FETO and PKK/PYD members constitute crimes against humanity belongs to the ICC. Dr. First of all, Uraz points out that the court has such a selective understanding of justice and that it has been criticized.
“The ICC has not tried top US government officials for crimes committed in Iraq and Afghanistan, but recent discussions of investigating China, Turkey and Putin have drawn criticism of the ICC’s exercise of selective justice. This shows the increasing danger of the ICC becoming a legal weapon for the world outside the free west.”
What are the powers of the ICC?
The ICC operates according to the provisions of the Rome Statute. To date, 123 countries have signed the Rome Statute and 123 have ratified it. The main purpose of the court is to fight serious crimes such as war crimes and human rights violations. Ukraine is one of the member states of the court. Accordingly, “There may be a trial regarding Putin’s actions in Ukraine,” says Uraz.
“The Court has jurisdiction limited only to core crimes, namely the crime of genocide, crimes against humanity, war crimes and crimes of aggression and crimes committed in member states. Jurisdiction can arise in three situations: crimes committed at the borders of a member state, crimes committed by a national of a member state, and authorization by the UN Security Council. The Court steps in and is complementary when national systems fail. Ukraine has recognized jurisdiction over the arrest warrant against Putin and can prosecute Putin’s actions in Ukraine.
Article 28 of the ICC Statute is a provision that regulates the holding of superiors responsible for the actions of subordinates. According to this article, acts alleged to have taken place on the ground can be associated with Putin, and Putin, as having effective authority and control, can be held responsible for these acts committed by his subordinates. So, even if Putin is not directly related to the crimes alleged to have taken place on the ground, he can be held responsible as having effective control in the realization of the crimes.”
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“There are contradictions in the laws regarding the ICC and the heads of state”
Uraz states that it is possible to arrest an incumbent head of state in accordance with Article 58 of the ICC Statute. However, he also emphasizes that the physical enforcement of this arrest warrant can be quite difficult. On the other hand, Dr. Uraz also points to a contradiction in terms of the law on heads of state.
“Member states have the obligation to implement the decisions of the ICC, but due to the practical difficulty of this implementation, similar decisions have not been implemented before. However, the contradiction between the principle of presidential immunity and Article 27 of the ICC is also at the center of legal debates.”
The contradiction that Uraz mentions here is a reference to the conflict between the principle of immunity of the head of state and Article 27 of the International Criminal Court (ICC). While the principle of immunity prevents heads of state from being tried in courts outside their country’s jurisdiction, article 27 of the ICC states that no person is immune for serious crimes such as war crimes, crimes against humanity and genocide. For this reason, Uraz underlines that there is a conflict between the national laws that give immunity to heads of state and the jurisdiction of the ICC.
“West in search of proof”
So, is it possible for the West to enforce this decision? Uraz mentions that the attitude of international law is different on whether Putin can be arrested or not.
“Many academics and state officials in the Western academic community are in a race to prove that Putin’s arrest decision is in line with international law. International criminal lawyers differ on whether Putin’s arrest would be in line with international law. In general, however, it seems unlikely that Putin will be arrested, as there is no UNSC resolution on Putin and his membership in the ICC does not remove the principle of respecting immunity between states.”
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Putin’s arrest in 4 scenarios
Uraz draws up 4 scenarios for the arrest to take place. These possibilities are purely representative, but the rules of international law always give the same verdicts.
“There are 4 possibilities for Putin’s arrest: A radical change of administration in Russia. Even if such a change takes place, such a handing over of a former president in Russian state culture is an act that has no place. Therefore, this possibility, which is the most positive for ICM, seems remote.
The second possibility is that Putin is arrested by an ICC member country to which he travels and handed over to the ICC. Beyond the illegality described above, I leave it to the reader’s discretion whether, politically, there is a state capable of such an attempt against the head of state of a nuclear superpower.
The third possibility is the prolongation of the crisis, Putin’s refusal to travel to ICC countries, and the closing of the case with his death one day.
The last possibility is that as a result of the political resolution of the Ukraine crisis, the decision to be reversed with the pressure to come or – worse – the change of the political conjuncture, Russia to improve its relations with the member countries of the ICC, and Putin to freely visit these countries without the implementation of the ICC decision by his own members. This last possibility completely destroys the already shaky credibility and effectiveness of the ICC.”