Putin: arrest warrant issued !

On March 17 the International Criminal Court (ICC) issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova who is the Commissioner of Children’s Rights in his office. Never before had the ICC taken such action against the Head of State of one of the Permanent Members of the United Nations Security Council (UNSC). It was brought about on a motion by ICC Prosecutor Karim AA Khan. As part of a statement the day the warrants were issued Khan said “On the basis of evidence collected and analysed by my Office pursuant to its independent investigations, the Pre-Trial Chamber has concluded that there are reasonable grounds to believe that President Putin and Ms Lvova-Belova bear criminal responsibility for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation, contrary to article 8(2)(a)(vii) and article 8(2)(b)(viii) of the Rome Statute”. The ICC statute was adopted at a convention in Rome; hence, it is known as the Rome Statute.

While the ICC’s statutory mandate covers crimes against humanity, war crimes, genocide and the ‘crime of aggression’ it chose to act against Putin only on the charge that the Russian authorities had moved Ukrainian children from places in the war-torn areas to the interior areas of Russia and had given them in adoption to Russian families and made them Russian nationals. The Rome statute provides that children should not be taken from their families or from their natural areas of habitation in conflict situations. There is little doubt that whatever may have been the provocation by the NATO states and the Ukrainian government, Russia’s invasion of Ukraine was unjustified. Hence, the question is why did not the ICC move against Putin for the invasion of Ukraine itself. There is no indication from the Court on this point.

The ICC was established when the Western democracies having won the Cold War thought that they could impose their standards and values on the world. To achieve this objective the shield of national sovereignty had to be cracked and intervention in the domestic affairs of especially developing states, especially in times of armed conflict, had to be justified. This gave rise to the doctrine of the Right to Protect (R2P) to peoples anywhere. The right to punish was a naturally corollary which flowed from R2P. Clearly, if those who indulged in crimes against humanity or genocide or war crimes or were guilty of aggression had impunity then R2P could not be implemented. Ironically, while 123 countries joined the Rome Statute and therefore came under the ICC’s jurisdiction the US refused to join it. Nor did Russia or China or India and for that matter nor did Ukraine. However, in 2014 and 2015 Ukraine accepted the Court’s jurisdiction and hence, now the Court has claimed that under ICC’s articles it has the right to issue arrest warrants against Putin.

The ICC President Piotr Hofmanski who is from Poland stressed after the arrest warrants against Putin were issued that the Court was a legal institution and not political in nature. Such assertions cannot be taken at face value for international legal institutions, including the International Court of Justice (ICJ), are deeply influenced by global political trends and their judges are never immune from safeguarding the interests of their nations. Many leaders of major powers treat the ICC with disdain, if not contempt. This was clearly shown when former US President Donald Trump told the UNGA in September 2018 “As far as America is concerned the ICC has no jurisdiction, no legitimacy and no authority. The ICC claims near-universal jurisdiction over citizens of every country, violating all principles of justice, fairness and due process. We will never surrender America’s sovereignty to an unelected, unaccountable global bureaucracy”. The Biden administration has also objected to the ICC seeking to exercise jurisdiction over non-state parties.

The US position implies that as Russia is not a party to the Rome Statute the ICC cannot claim jurisdiction over Putin. Yet President Joe Biden said that the ICC arrest warrants were justified because Putin had indulged in war crimes. During their operations in Afghanistan, US forces had sometimes bombed innocent Afghan civilians including those who had congregated for weddings. Sometimes US forces apologised for their ‘mistakes’ attributing them to faulty intelligence. Biden was the US Vice-President when some of these actions were taken. And, during the chaotic US withdrawal from Kabul a house was bombed from the air. Instead of terrorists an innocent family including women and children were killed. The ICC has not made any headway in indicting US personnel who killed innocents in Afghanistan. Even if it had there is no doubt that the US would have entirely rejected its efforts.

Thus, the Western response to the ICC’s issuing arrest warrants against Putin is hypocritical. That does not imply that the rules of war should not be followed by combatants but the fact is that the global system is ruled by power and those countries that have it do not accept subjecting themselves to the jurisdiction of international criminal tribunals. Even now the ICC can hardly expect that it can reach the leaders of those Western democracies who are signatories to the Rome statute. It cannot treat them as it does warlords of small conflict-ridden states

Small wonder then that Russia has responded with lodging cases against the ICC personnel. It is treating the ICC warrants with contempt and as part of propaganda against Putin for it knows that the international system is based on power and not justice.

Disclaimer: The views and opinions expressed in this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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