ɫ��ɫ

The International Criminal Court (ICC) recently issued war crime charges against Russian President Vladimir Putin. This is only the second time in the court’s history that charges have been issued against a head of state.

In this Q&A, Prof. Heidi Haddad explores the charges issued by the ICC against President Putin and Maria Lvova-Belova, and what they signal ahead for the Russian war against Ukraine.

Haddad, an associate professor of politics at Pomona, researches the intersection of international relations and international law. More broadly, she studies the global governance of human rights. She is the author of .

What is the International Criminal Court (ICC) and what jurisdiction does it have?

The ICC, established in 2002 and located in The Hague, Netherlands, is the first permanent international criminal court. It tries individuals “most responsible” for four crimes: war crimes, crimes against humanity, genocide and aggression. The court is premised on the principle of complementary — which means that it is a court of last resort. It only takes cases when a state is unable or unwilling to prosecute crimes in domestic courts.

The foundation of the ICC is the Rome Statute – an international treaty, which countries join, or become party to, through ratification. The ICC obtains jurisdiction in three ways, two of which depend on whether a country has joined the Rome Statute: (1) the crimes are committed by nationals of any country within the territory of a country that is a party to the Rome Statute or has voluntary accepted the court’s jurisdiction without being a party; (2) the crimes are committed by nationals of a country that is a party to the Rome Statute anywhere in the world; and (3) the United Nations Security Council refers a situation to the ICC regardless of whether the country is a party to the Rome Statute.

Vladimir Putin’s alleged crimes committed in Ukraine fall under the jurisdiction of the ICC because Ukraine has voluntary accepted the Court’s jurisdiction since February 20, 2014 (following Russia’s takeover of Crimea) to the indefinite future. Ukraine’s declaration grants jurisdiction to the ICC for any crimes which occur in Ukraine — including those committed by Russians, even though Russia is not a party to the Rome Statute.

What charges is the ICC issuing against Russian President Vladimir Putin?

The ICC charged Putin, and his commissioner for children’s rights Maria Lvova-Belova, with the war crime of unlawfully deporting children from the occupied areas of Ukraine to Russia. Russia has admitted to holding 1,400 Ukrainian children, which they describe as orphans, and at least 2,000 children have travelled to Russia unaccompanied.

Why did the ICC charge this crime, when there is evidence that suggests that other crimes have been committed in Ukraine – including war crimes, crimes against humanity and aggression?

First, to serve as a deterrent. The court wanted to prevent future crimes from occurring, especially as Russia is still forcibly deporting Ukrainian children. Further, unsealing the arrest warrant for this crime does not prevent the ICC from adding more changes in the future. However, those future crimes will not include the crime of aggression. For the crime of aggression, which came under the ICC’s mandate through an amendment to the Rome Statute, Russia would have had to agree to the amendment, which is has not.

Has the ICC issued charges against a sitting head of state before?

It is an established fact in international law that heads of state do not have immunity for war crimes, crimes against humanity and genocide committed during their time in office. Putin is the second sitting head of state to be charged by the ICC. President Omar al-Bashir of Sudan was charged in 2009, and again in 2010, with war crimes, crimes against humanity, and genocide. He has yet to be arrested and tried.

How realistic is it that a trial for Putin will occur?

As with al-Bashir, the greatest impediment to trial is the ICC having physical custody of Putin. The ICC does not conduct trials in absentia. Putin must be arrested and transferred to The Hague.

Russia is unlikely to turn him over. The 123 countries that are party to the Rome Statute are legally required to arrest him if he enters their countries. However, Putin will no longer travel there. While a trial is unlikely, the arrest warrant makes Putin an international pariah, whose ability to travel will be severely curtailed.

Does the U.S. support the ICC’s case against Putin?

The history of U.S. support for the ICC has been mixed. After initially championing the drafting of the Rome Statute, the U.S. changed course, largely due to the outcome on jurisdiction, which potentially opened U.S. nationals to be tried at the ICC, even if the U.S. was not a member. In 2022, President George W. Bush went so far as to “unsign” the U.S. from the treaty (even though it was never ratified). The same year, the U.S. passed the American Servicemembers’ Protection Act, which protects U.S. persons from the court’s jurisdiction and prohibits any U.S. support or assistance to the ICC. There have been two subsequent legislative amendments – the Dodd Amendment and The Consolidated Appropriations Act of 2023 – which open up exceptions to the ban on U.S. support to the ICC – one of which specifically relates to assisting cases related to the Ukraine.

In reacting to the arrest warrant, President Biden called it “justified” and stated that Putin “clearly committed war crimes.” Nevertheless, the U.S. does not formally recognize the warrant, as the U.S. is not a party to the Rome Statute.

Will the ICC charges against Putin help rally support for Ukraine from other countries?

Among those countries already supporting Ukraine, the arrest warrant against Putin may reinforce their support. It shows that Russia’s invasion of Ukraine, which is widely considered illegal and a fight against authoritarianism, is also being conducted in an inhumane and illegal way.

For countries, such as China, Iran, Belarus, North Korea and Syria, which maintain close relations with Russia, and are not parties to the Rome Statute, the arrest warrant likely won’t change their relations. Only days after the charges, Chinese President Xi Jinping traveled to Moscow and met with Putin.

The arrest warrant against Putin may complicate the neutral, mediator role that Turkey and India have sought to the play in the war in Ukraine. While neither country is a party to the Rome Statute, and is therefore not obligated to arrest Putin, having Putin travel to their countries could be a major diplomatic incident with ICC member states exerting tremendous pressure to arrest Putin. Such a showdown could take place in September when New Delhi hosts the G20 Summit – an event normally attended by Putin.

Even if the ICC’s charges against Putin don’t dramatically change support for the war, it does show that the court is working as it is meant to do. The ICC is tasked with holding those most responsible to account, and arrest warrants are a first step in doing so.