On Friday, March 17, 2023, the International Criminal Court announced that it had issued an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children’s Rights.
The Court said it had “reasonable grounds to believe” that Putin was responsible for unlawfully transferring and unlawfully deporting children from occupied Ukrainian territory into Russia. The arrest warrants are a major legal and diplomatic development in Russia’s illegal war against Ukraine.
To discuss what the arrest warrants mean, we have Rebecca Hamilton, a law professor at American University and a member of Just Security’s Editorial Board. She has seen these issues firsthand as a former prosecutor at the Court.
Paras Shah: Hello, and welcome to a special episode of the Just Security podcast. I'm your host. Paras Shah. Earlier this morning on Friday, March 17, 2023, the International Criminal Court announced that it had issued an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children's Rights.
The Court said it had “reasonable grounds to believe” that Putin was responsible for unlawfully transferring and unlawfully deporting children from occupied Ukrainian territory into Russia. The arrest warrants are a major legal and diplomatic development in Russia's illegal war against Ukraine.
To discuss what the arrest warrant means, we have Rebecca Hamilton. Bec is a law professor at American university and a member of Just Security’s Editorial Board. She’s seen these issues firsthand as a former prosecutor at the International Criminal Court.
Hi Bec, thanks so much for joining us.
Rebecca Hamilton: Pleasure.
Paras: I want to start with the million dollar question, which is, what is the significance of this arrest warrant that was issued this morning?
Rebecca: Yes, it's the question on the minds of, of every journalist I've spoken to today, it's symbolic impact is immense, it's immediate, practical impact is, I think, a little harder, for people particularly who are not sort of immersed in this world to see because the reality is we are not going to see Putin in the dock, in the Hague, anytime soon. I'm confident that we will over the long term, but that could be perhaps the very long term.
However, in the short-to-medium period, there are other impacts that we are going to see that I think are, are really meaningful. So, the symbolic one obviously is first and foremost it is about the signal that this sends to Ukrainian children and their families who have had their children separated from them, as well as I think the Ukrainian population in general who have been asking the world to condemn what has been happening under Putin's leadership. And to have the ICC come out and charge him formally as a war criminal, and to send that message, I think is meaningful and shouldn't be discounted. And then what's going be interesting to see over the coming days, weeks, and months, is the political impact and that's going be firstly at the sort of, global geopolitical level as diplomats around the world have to factor in the reality of this arrest warrant into their conversations about how to handle the situation in Ukraine.
It's going to be, I expect, a topic at the U.N. Security Council, which does have the option under Article 16 of the Rome statute, using its Chapter VII authority under the U.N. Charter, to tell the prosecution to just put this on hold for the next 12 months. They can suspend it for 12 months, they can do that again and again.
So they're going need to think about if they want to try to do that, whether that's something that Russia would want to see, so, it's going come into those negotiations as well. And then the other piece in this that I'm, I think perhaps most interested in and is going be least visible to us, at least in the short term, is what is the impact that this will have inside Russia itself?
What is the impact for those that are opponents of Putin's regime? Does this open up some space for them to imagine a Russia that is not led by Putin in a different way? And then more directly to the specific charges around the unlawful deportation and transfer of these children, can the arrest warrant start to bring to bear a counter narrative against what Putin has been pushing that this whole program is just a humanitarian endeavor that has been done in the best interests of these children?
Paras: Let's talk a little bit about the underlying conduct, at least what we know from the press release and the public reporting. What exactly is the ICC saying that Putin has done here?
Rebecca: So, the charge is that he's both individually criminally responsible and responsible as a matter of command responsibility for this program of unlawful deportation and transfer of children from occupied Ukrainian territories into the Russian Federation. Now, while the ICC let us know publicly that the arrest warrant has been issued, we don't have any more than that. We don't have the Prosecutor's application for the arrest warrant, that they would've made that would've been reviewed by the Court as it made this determination to issue the arrest warrant.
But I think what we can expect is that the ICC prosecution will have at a minimum as much as we've seen reported publicly about this program and, almost certainly a lot more as well. What we've seen reported publicly, a lot of it has come out of the work that was done by Yale's Humanitarian Research Lab, that did just this extraordinary sort of forensic detailing of digital evidence – open source intel, user-generated evidence that Ukrainian families had been putting onto social media – geolocation of the sites of transportation that the children were taken to, to really put together a narrative of this program. And then what I think is helpful, to everybody involved in seeking accountability for this program, is that Vladimir Putin himself and his Children's Commissioner have been very public about this program. They haven't been trying to hide it. There have been multiple press, opportunities where they have discussed this, and so I think we can be confident even without seeing the prosecutor's application, that there is a lot of evidence to back this up.
Paras: What does this mean in terms of the development of an ICC case?
Rebecca: So, what it means for the Chamber to have issued this arrest warrant is that they have been satisfied that the Prosecutor's application shows that there are quote unquote, “reasonable grounds” to believe that that Putin is criminally responsible for the charges that had been made against him.
But, that's just step one in the process, and so, in the eventuality that Putin is actually brought into custody, those charges will be confirmed by a Pre-Trial Chamber before they then move forward with the trial. So, there are many steps to go in the process, but I think in the short to medium term, it's going be less about those legal hurdles playing out in court because I don't think we're going see him in the dock in the short term and much more about what are the diplomatic, political, and symbolic ramifications of this decision.
Paras: You have seen a similar process play out from the inside at the Hague when you were a prosecutor at the International Criminal Court when it issued an arrest warrant for Sudan's President Omar al-Bashir. So, what is your impression of what was happening inside the court?
Rebecca: So, it will have been very, very much thought through, discussed, and debated the merits of deciding to make public, this issuance of the warrant. Because of course, the other option was that they could have issued it under seal, and you could have had Putin potentially traveled to a country that might have then arrested him.
But the Court was pretty clear in its statement announcing this, that one of the reasons they decided to make this public was the hope that it would deter from the continuation of this program. And I think that that's a sound decision. I mean, I don't think that at this point Putin himself is going to be deterred, but it takes a lot of people below Putin to run a program of the scale that this one seems to be with the deportation, the transfer, and then what seems to be the re-homing of these children with Russian families. And all of that depends on the people involved not fearing accountability for war crimes, which they hopefully will now fear, and it depends on the Russian families really believing that they are doing something in the best interest of these children, which the charges that have been brought really is a strong counter narrative to that. So I think it was important to get that message out, publicly and quickly, that the International Criminal Court is giving intense scrutiny to this program of deportation with very, very significant and lifelong implications for the children involved and for their families.
Paras: You mentioned at the top that these types of arrest warrants have a number of functions. Some of them are practical, actually trying to get the person who has been indicted in the Hague, but others are symbolic. So, what are some of those other functions that this arrest warrant is playing?
Rebecca: So, the symbolic one really speaks to Ukrainians, and sends the message that the International Court, which is the, you know, obviously highest international body with criminal responsibility here, sees what is happening, recognizes the harms, and is pursuing accountability. So that message alone is important, and then politically it makes a difference. It makes a difference to the people that are speaking to Putin, and it's going make a difference to Putin himself by the fact that he's not going to be able to travel without fear of arrest. And then we're going see what impact, if any, this has on the dynamics at the U.N. Security Council because of the potential for a resolution around Article 16 coming into play.
Paras: And what should we be looking for in the next week or so as this continues to unfold and develop?
Rebecca: So, I would imagine, based on, on past experience, that in the immediate term we're going see a, an internal rallying around Putin inside Russia, obviously led by Putin himself, decrying the illegitimacy of this Court and so on. And he will try to sustain that for as long as he can – what he can't control is sort of thought process and quiet conversations and what it means to people to have a President who has now been formally charged as a war criminal. And so I'll be looking for reporting, coming out of Russia, which is obviously a huge challenge, for the journalists that are still managing to work there given their safety and security concerns – but to hear how over time it may shift the conversation inside Russia. Next week, I'm going be looking for the conversation at the U.N. Security Council, with Article 16, I'm sure being part of the conversation, even if we don't see any forward movement on it, immediately. And yeah, I think those are the primary issues in the short term.
Paras: Anything else you would like to add?
Rebecca: I would just say that I think while it's obviously a bold move for the ICC to do this, it's, it's not the first time they've gone after a sitting head of state. When I was there, it was with the Sudanese president, there was subsequently charges made against the Libyan president, but this is the first time where we've seen a sitting head of state who is also part of the Permanent Five of the U.N. Security Council. So, this feels like it is different because of that. And I think it just shows that the ICC is, is not sort of resigning itself to being a backwater player in the international system. That when it has the evidence that takes it all the way up the chain of command it will go ahead and bring those charges.
And I think it also makes sense given the amount of prosecutorial resources that have been thrown at the situation in Ukraine. The I CCC is the one actor in that system that actually has the ability to go after Putin or, or any of the so-called Trokia for head of state immunity reasons., There is a lot that the Ukrainian prosecutor is doing and will do – similarly, when we think to, what is happening in the incredible levels of coordination across the EU on this accountability issue – but all of them are hampered by head of state immunity, and the ICC is the one actor in that system that arguably at least, is not so constrained. Although I do anticipate a lot of chatter in the blogosphere about what head of state immunity will mean in this situation.
Paras: Right, and just to remind listeners, head of state immunity is a concept in international law that says that certain high level government officials cannot be tried before certain types of courts. That includes domestic courts, but it doesn't apply to fully international courts like the International Criminal Court, and that's a major legal reason why this is able to proceed in the first place.
Rebecca: Right. And for states that have signed up to the Rome statute, it's actually part of the Rome statute itself. One of the conditions you sign onto is that official position will be no bar, won't provide any sort of immunities here. That's obviously not the situation with Russia because it hasn't joined the Court.
In addition, the Court's jurisdiction in this case has not come through the U.N. Security Council, which is the other argument for how you can override the problem of head of state immunity. Nonetheless, the ICC is still a clearly international court. It clearly has international jurisdiction, and there's no argument here that this is just sort of a band of a few domestic courts or states getting together to do this. And so, I think the argument is strong to overcome head of state immunity in this situation still.
Paras: I know that many of us will be watching this closely and everyone should start by reading your Just Security piece that came out this afternoon. Bec, thanks so much.
Rebecca: Thank you.
Paras: This was a special episode of the Just Security podcast. Thanks so much to Rebecca Hamilton for joining us, especially on short notice. You can read her article analyzing the arrest warrants and their implications on Just Security's website.
For more developments, analysis, and news on the arrest warrants, and the International Criminal Court, stick with Just Security.