Aman Kumar
Introduction
It would be an understatement to say that the ICC has been under severe criticism, almost since its inception. However, over the last couple of years, it has taken some decision to bolster its image as a court established for ‘trying individuals for genocide, war crimes, crimes against humanity, and aggression’. Its recent decision to issue arrest warrant (AW) against the Russian President Vladimir Putin has certainly helped its cause. However, the actual impact and effect of the warrant remains to be seen. In this post, I discuss the warrant in detail. I will explain the charges made in the warrant, the modes of liability mentioned there. I will also discuss the probability of Putin getting arrested, primarily because of the principle of immunity of the heads of state from criminal prosecution.
Background of the Arrest Warrant
The matter pertains to the ‘Situation in Ukraine’, as per the ICC’s terminology. Investigation in the situation started in March 2022, after Russia launched attack on Ukraine. However, as mentioned by the prosecutor, ‘the scope of the situation encompasses any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards’.
Almost a year since starting the investigation, on 22 February 2023, the Prosecutor of the ICC submitted a request to the Pre-Trial Chamber II (PTC-II) of the ICC for issuance of arrest warrant against two individuals, i) Mr Vladimir Putin, President of the Russian Federation, and ii) Ms Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. Within a month, the PTC-II has given a decision on the request, issuing arrest warrants for both the individuals concerned.
Charges listed in the Arrest Warrant
The AW, per se, is still not available. The PTC-II has noted in its Press Release that the “warrants are secret in order to protect victims and witnesses and also to safeguard the investigation.” However, the ICC has in the past released redacted versions of the documents to protect sensitive information and privacy of individuals involved. For the time being though, we will have to rely on the press release.
It is mentioned in the press release that Mr. Putin has been alleged to have committed War Crimes of ‘unlawful deportation or transfer’ (Article 8.2.a.vii of the Rome Statute), and ‘the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’ (Article 8.2.b.viii of the Rome Statute). Similarly, Ms. Maria has also been alleged to have committed the same two War Crimes. And while both of them have been made liable under individual criminal responsibility (Article 25.3.a of the Rome Statute), Putin, being the head of their defense forces, has also been made liable under superior responsibility (Article 28.b of the Rome Statute).
First crime
The Press Release only mentions that the two individuals are “allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute)”. This leaves a lot of room for doubt. Firstly, to what extent is the liability under article 8(2)(a)(vii)? The said article criminalizes ‘unlawful deportation or transfer or unlawful confinement’. Since the press release doesn’t mention the term confinement, we can leave it out. But it does mention both transfer and confinement. So, are these two individuals responsible for both – ‘unlawful deportation or transfer’ under Article 8(2)(a)(vii)?
Second crime
The matter becomes even more confusing when we look at the second allegation under article 8(2)(b)(viii). This article criminalizes ‘(t)he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’. The press release notes that the transfer of children happened ‘from occupied areas of Ukraine to the Russian Federation’. Much like article 8(2)(a)(vii), article 8(2)(b)(viii) also uses the terms transfer and deportation. So the acts of transfer or deportation mentioned in the press release are a reference to which article is unclear. However, the allegations of transferring from occupied territory are clear to the extent that only article 8(2)(b)(viii) talks about such acts from occupied territory.
Immunity of Heads of State from criminal jurisdiction
Historically, under Public International Law, heads of states have enjoyed immunity from criminal jurisdiction of foreign courts. For example, when a case was filed against Narendra Modi in the USA, it was told by the court that since he was a sitting head of state, he can’t be summoned. At the ICC too, Putin’s case isn’t the first time the court has issues warrant against a head of state. In 2009 and in 2010, the court had issued two arrest warrants against the then President of Sudan, Mr. Omar Al-Bashir for allegations of Genocide etc. for the next few years, Mr. Bashir travelled to many countries on official visits. Some of these countries were party to the ICC and were required to arrest him, but they didn’t, citing his immunity. The matter was finally decided by the Appeals Chamber of the ICC which held that heads of state can be prosecuted before international courts, though not before the domestic courts.
The decision was based primarily on the interpretation of Article 27 of the Rome Statute, which governs the court. The said Article is titled ‘irrelevance of official capacity notes that:
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
The court has interpreted this to mean that the heads of state have horizontal immunity, i.e. immunity before national courts of other states, but they have no vertical immunity, i.e. before an international court, which is superior to the national court. The current arrest warrant against Putin has to be seen in this light.
Conclusion
I had covered the Ukraine v Russia proceedings earlier in March 2022. Writing after the Preliminary Decision of the International Court of Justice in that case, I had noted that “(i)t remains to be seen what is going to be the efficacy of the order. Russia might as well decide not to follow the order, though one hopes that it does, considering the number of lives at stake”. I am afraid but I have similar feelings after the arrest warrant too. For one, so far, the ICC has been unable to secure arrest of Mr. Bashir, for whom the arrest warrant was issued way back in 2009! Some might say that he was the President then and hence could not have been arrested. But Putin too is the President of Russia, which by this logic would mean that he too can’t be arrested. Moreover, Mr. Bashir was removed from his post by the military in 2019 and still he has not been arrested. The immediate implication of the arrest warrant will be felt by South Africa, a member of the ICC, which is scheduled to host BRICS members in August 2023. If President Putin decides to join the summit, it would be interesting to see what South Africa does (or does not do).
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