Andreas Chorakis*
Introduction
The founding treaty of the International Criminal Court (ICC), the Rome Statute, states in its preamble, “such grave crimes [under the Court’s jurisdiction] threaten the peace, security and well-being of the world.” However, the peacemaking role of the ICC is not as straightforward as its preamble describes. As a judicial and political forum, the ICC engages in storytelling. In most occasions, the story is told only from one side. In other words, it is a well-known practice of the Court to create villains and enemies of mankind. The indictments and issuances of arrest warrants by the Court have been used as forces of political pressure towards specific groups and individuals to such an extent that they impact peace processes and international justice.
Characteristic is the example of Joseph Kony, the leader of the Lord’s Resistance Army (LRA) in Uganda. In 2005, then-Prosecutor of the ICC, Luis Moreno Ocampo, decided to issue arrest warrants only against Kony and his inner circle, leaving aside any crimes committed by the Ugandan government. The arrest warrant against Kony was issued while the Juba Peace Talks were ongoing, damaging any effect of the potential peace treaty and the delivery of substantive international justice. This move was significant because, as the leader of the rebel group in Northern Uganda, the active participation of Kony in the peace process was a vital element for a successful result. However, by targeting the major opponent of the Ugandan government, the ICC kept up with its policy to prosecute the main stakeholders engaging in mass atrocities. It is also important to mention that both sides of the conflict wished to use the ICC as the main judicial institution to prosecute war crimes and crimes against humanity. While the self-referral of the Ugandan government became a catalyst to the peace negotiations, the arrest warrants against the LRA buried an effort for peace and justice by failing to contribute to a substantive delivery of criminal justice and, respectively, to prosecute all perpetrators of heinous crimes that “shock the conscience of humanity.”
The new target of the ICC is the President of Russia, Vladimir Putin. In March 2023, almost a year after a multi-party referral from 43 State parties to the Rome Statute, the ICC Prosecutor, Karim Ahmad Khan, proudly announced the issuance of an indictment and arrest warrant against President Putin for the crime of unlawful deportation (children) and unlawful transfer of population (children) from occupied areas of Ukraine to Russia. Hence, the construction of a new villain has started.
Against this backdrop, it is worth examining the potential impact of Putin’s arrest warrant on the peacemaking process and the delivery of international justice in Ukraine. Legal scholarship seems to predominantly embrace the arrest warrant positively. Some scholars remark that Putin’s arrest warrant is one of the most progressive movements made by the Court, while other scholars discuss how the warrant changes the dynamics in the Russia-Ukraine War, which includes the potential involvement of the United Nations (UN) Security Council. A few scholars highlight the risks of the arrest warrant. However, there is a glaring absence of legal scholarship that explains how Putin’s arrest warrant may serve peace and justice.
I. Breaking the Throne: The Al-Bashir Case
In March 2009, then-President of Sudan, Omar Al-Bashir, had the dubious honor of becoming the first sitting Head of State to be indicted by the ICC. Similar to then-President Al-Bashir, President Putin’s status as a sitting Head of State invokes two critical articles of the Rome Statute: Article 27 (Irrelevance of Official Capacity) and Article 98 (Cooperation with Respect to Waiver of Immunity and Consent to Surrender). First, under Article 27(2), there is no immunity protection for crimes under the jurisdiction of the Court; sitting or former Heads of State cannot hide behind the immunity veil to avoid prosecution and conviction. Second, under Article 98, as the Court does not have independent resources, States must cooperate with the Court and surrender the suspect immediately.
In the Al-Bashir case, despite the strict wording of Articles 27(2) and 98, Al-Bashir’s transfer to The Hague before the ICC judges was a tumultuous journey with no ending result. The first duty to cooperate fell on Sudan, which, due to the UN Security Council Resolution 1593 (2005), was deposed under the jurisdiction of the ICC. As the sitting Head of State, Al-Bashir had control over all enforcement mechanisms of Sudan. So, of course, Sudan could not act independently to surrender Al-Bashir. Consequently, the burden of enforcement fell to the other State parties to the Rome Statute. However, despite this obligation and the desperate cries from the Court, other African and Arab States—most of which were State parties to the Rome Statute—did not show any willingness to arrest and surrender Al-Bashir to The Hague. Even with his outstanding warrant, Al-Bashir traveled to several African and Arab States for conferences of international organizations, such as the African Union (AU) and the Arab League, without risk of surrender. For over 8 years, Al-Bashir wandered about the African continent, and no State—neither State parties nor non-party States of the Rome Statute—was willing to take the initiative to arrest him.
Due to the other State parties’ non-cooperation, the ICC was urged to interpret itself and made a strict ruling. In May 2019, the Court issued the Judgment in the Jordan Referral re Al-Bashir Appeal, interpreting the grounds of non-cooperation concerning the laws of immunities. The Court decided that as there is no exception to the waiver of immunity for sitting Heads of State in the Rome Statute and customary international law, there is no exception to the rule of cooperation. The States that have a duty to cooperate with the Court must cooperate with the Court no matter the circumstances. The Court set a precedent to stop any other Al-Bashir cases in the future.
II. A History Repeated?: The Putin Case
The first question is the enforceability of the arrest warrant. Russia has not waived the customary law immunity of its Head of State, and as a non-party State of the Rome Statute, it has no obligation to comply with the Court’s decision. Thus, the burden of enforcement mainly rests on Ukraine and other European Union (EU) Member States in the event that President Putin is present in their territories. As noted by Amsterdam Law School Professor Sergey Vasiliev, whether or not President Putin decides to visit an EU Member State falls in the spectrum of speculation. He also notes that even prior to the warrant, President Putin had reduced his travels to destinations outside Russia.
A further question is the impact of the arrest warrant on peacemaking and substantive international justice in Ukraine. This issue is complex. In the context of transitional justice and attribution of criminal responsibility, the ICC has been used as a forum to prosecute perpetrators of war crimes committed during active hostilities. Characteristic is the example of the Juba Agreement for Peace in Sudan, which names the Court as one of the main forums for delivering international justice as part of the peace process.
However, the Court is not a peacebuilding institution but a criminal prosecution mechanism for the most heinous crimes. The prosecutorial function of the Court is often detrimental to the peace process as it criminalizes certain parties of the conflict. The criminalization of one side of the conflict not only tarnishes the public image of those accused, but it also politically disenfranchises the individual and their constituency. Consequently, warlords, regional leaders, and armed group leaders are unwilling to enter peace negotiations as arrest warrants are pending against them, and they have been identified as international criminals. This phenomenon was seen with the Ituri conflict in the Democratic Republic of Congo and the arrest warrants against the former leader of the Union of Congolese Patriots (UPC), Thomas Lubanga Dyilo, and the former leader of the Patriotic Resistance Force in Ituri (FRPI), Germain Katanga.
Additionally, the prosecutorial role of the Court could easily jeopardize the peacemaking role of international organizations. International organizations such as the EU and the AU can be a neutral forum for peace talks as they offer flexibility and neutrality. Moreover, these organizations have developed strong mediation skills due to their enlargement process.
In the case of Ukraine, the EU can be the main negotiator and peacemaker in the Russia-Ukraine War. The EU has played the same role in the past, on certain occasions with great success, such as the Bosnian War, and on other occasions with great failure, such as the situation in Cyprus. As a mainly political organization, the EU has the capacity, the skills, and the appropriate means to provide a peaceful solution for Ukraine. However, under the pressure of the arrest warrant, the EU could not fulfill its role. Having a fear of being arrested and being transferred to The Hague, the Russian political authority would avoid any visit to EU countries or any negotiations in an EU Member State’s territory. Therefore, the EU would lose its main advantage as a neutral negotiation mediator.
Moreover, the EU would need to spend its resources to enforce the arrest warrant. Such a policy would length the gap in the relationships between the EU and Russia, prolonging the armed conflict. Thus, the arrest warrant can provoke more damage to the EU’s role than any benefit.
Conclusion
The arrest warrant against President Putin is indeed a challenging step for the ICC. The Court has indicted one of the world’s most powerful and prominent political leaders. On the one hand, such a move could increase the Court’s appeal. On the other hand, enforcing the arrest warrant is a complex matter that demands the cooperation of key factors, such as the EU. The implications of enforcing the arrest warrant could easily create a new Al-Bashir situation, which would not only damage the image of the Court as a forum of justice but also diminish the role of important stakeholders, such as the EU, in resolving the crisis. The ICC is one the main narrators in the Russia-Ukraine War, and its approach will vividly picture the villains and the enemies of mankind. The impact of the ICC’s storytelling will remain open for consideration in any future peacemaking efforts.
* Andreas Chorakis is a MPhil/Ph.D. Candidate at Middlesex University. He is currently a Teaching Fellow at the School of Oriental and African Studies (SOAS) University of London. He has taught modules at Middlesex University London and the University of Law, specializing in English Business Law, Civil Litigation, and Human Rights. He is developing his research in Business and Human Rights Law, International Dispute Resolution, International Criminal Law and General International Law. He is a graduate of the Geneva Graduate Institute (LL.M., 2018) and the University of Athens (LL.B., 2017).
