Putin in the dockyard? Or whatever international lawyers ought to (have) reflect(ed) on

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In this post, Dr Alexander Orakhelashvili discusses the arrest warrant issued by the International Criminal Court’s (ICC) prosecutor against the President of Russia Vladimir Putin

Photo of Dr Alexander Orakhelashvili

The ICC’s office of the prosecutor has issued an arrest warrant against President of Russia Vladimir Putin and another high-level State official whose portfolio relates to the rights of children. At this stage, the arrest warrant relates to allegations of unlawful deportation of children from Ukraine to Russia. This is not a first arrest warrant issued against an incumbent head of State of a State not party to 1998 Rome Statute that has established the ICC. The ICC’s own decision that President Al-Bashir of Sudan would not enjoy immunity before the Court was certainly not in accordance with the political mainline in the West, and was in fact opposed by several international lawyers, including those who have testified before the ICC with regard to this matter. As I have explained earlier, and much as this issue was controversial, it was by no means outside the Court’s authority to declare that it can try sitting heads of State of any State, including ones not parties to the ICC Statute. With this current arrest warrant being issued, now certainly not obviously out of tune with the political mainline in the West, those international lawyers would be likely to end up changing their previous assumptions.

The practicality of President Putin getting tried by the ICC is an issue, regardless. Under Article 58 of the ICC Statute, all States parties to the Statute are obliged to comply with the Court’s directions including its arrest warrants. Russia is not party to the ICC Statute and has already described the arrest warrant as null and void in relation to itself. The arrest warrant is rather likely to create some problems for President Putin’s international mobility, for now or after he retires, whenever that may be. This would not be a first case of such kind, as high-ranking policy-makers such as the former President GW Bush of the United States have encountered a similar problem and either had to seek a legal advice or even cancel the international travel that they had planned.

The above seems to be the position with regard to President Putin’s international travel, at least to countries that have become parties to the ICC Statute or have otherwise recognised the Court’s jurisdiction. As for other States, a voluntary cooperation with the ICC, if dictated by that State’s political entanglement, is by no means an impossibility. But what about President Putin’s vulnerability when remaining in Russia or in areas over which the Russian Government exercises an effective control? From all previous cases, we can see that President Milosevic of Yugoslavia was rendered to the International Criminal Tribunal for the former Yugoslavia (ICTY); President Charles Taylor was rendered to the Special Court for Sierra-Leone (SCSL); and Sudan has decided to send President Ab-Bashir of Sudan to the ICC’s own custody. In all those cases, the event in question has happened after the political regime change in the countries in question, with the effect that former heads of State had became politically obsolete or even political pariahs.

What is the likelihood of a similar thing happening in Russia? Even if and whenever President Putin were to stand down from his office of the head of State, it cannot be taken for granted a subsequent government of Russia, even if composed by those who currently happen to be Putin’s political opponents or others with a similar political orientation, would venture to send Putin to the Hague. The ICC’s arrest warrant makes the prospect of Putin’s putative resignation even more difficult, should the political dynamics in the Russian society force him to undertake that step, and at any rate without prejudice to the extent to which such outcome would ever be real. Even if such outcome did ever materialise, it would most likely come with a string of conditions that would include guarantees and immunities that would protect Putin from any prosecution danger, whether national or international. Hence, what would be required is a political change so drastic and so radical that would make Putin’s extradition acceptable to Russian public opinion and, most importantly, to domestic power-political stakeholders within Russia itself. To illustrate this, think of someone like Navalny becoming a President of Russia with the sweeping and enthusiastic support of the population and then having such strong control over the Russian society and enjoying such a high approval in it that s/he could afford to send Putin to the Hague without risking their own political career. To anyone who is familiar with basic concepts and precedents relating to political transformation of national societies, it will be immediately clear that what would have to be involved here is a political change in Russia as drastic as one that Germany experienced after 1945 or Iraq from 2003 onwards.

Where does that leave us? That the arrest warrant has been issued is now a fact of life from the perspective of everyone who supports it or disapproves its issuance (as such an issue within the Prosecutor’s statutory authority that enables him to determine whether prosecution would be practical). Nevertheless, legal validity and binding force of the arrest warrant is in a clear and irreconcilable contradiction with the political unreality of it ever being enforced; and some cynics might even suggest that the Court has initiated a job which it is confident will never have to take trouble to actually tackle and carry out. The warrant makes it even more difficult that a political compromise resolving this war and crisis could emerge between Russia and Ukraine, or Russia and the West with regard to Ukraine. To conform with such putative international deal, the ICC would have to cancel the warrant, at the risk of acting contrary to the requirements of its own Statute or, at the very least, at the risk of an extremely innovative interpretation of it, which interpretation wold probably be the first of its kind and attract the perception of it having been carried out for political reasons. Again, contrary to a decades-long argument some international lawyers have been putting forward, the ICC is not only independent of States, but it is independent also to such an extent that political settlements, whether on the national (ones envisaging amnesties or similar political deals for perpetrators of core international crimes), or on the international plane do not affect either the ICC’s jurisdiction or the nature of prosecutorial discretion under Article 53 of the ICC Statute. If the ICC were to be led to change its mind, it would again become to be perceived or portrayed as a politically selective Court, further to its work over the past few years that has done a great deal to dilute such perceptions and emancipate the Court from its previous reputation as “the international criminal court for Africa”. Political flexibility in one case would no doubt increase the chance of its recurrence with regard to other cases now before the Court or the future ones.

Hence, the main lesson to be learned both by policy-makers and international lawyers from all this is not about whether President Putin will ever actually end up in the ICC’s dockyard. That he may never have to do so is not a problem that would face only international tribunals, because even in strong and centralised national legal orders, police and prosecutors are not always impeccable in punishing all persons who commit crimes, even serious crimes such as murder or armed robbery, and at times this happens on the basis of the discretion that public authorities exercise. Instead, the main challenge will henceforth continue to be the preservation of the ICC’s own institutional integrity and independence as a genuinely independent court that is not in a habit of being tough on events involving some States and easy on events involving other States. If the community of international lawyers were to more enthusiastically embrace this priority, this would certainly help the Court in challenges that it may face in all relevant cases. But for the time being, the problem is the uncertainty as to the extent to which the community of international lawyers is genuinely supportive of the ICC that would robustly and impartially exercise its mandate across all relevant cases, and would never be or be seen as succumbing to any direct or indirect political pressure to embrace political selectivity. Much as it is eminently clear that the international community of States is not in its entirety so supportive, and is unlikely ever to be.

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