On 17 March, the International Criminal Court (ICC) in The Hague issued an arrest warrant for Vladimir Putin for overseeing the abduction of Ukrainian children to Russia. It is the first warrant issued by the ICC for crimes committed in the Ukraine war, and one of few warrants against a state’s leader. Only days later, President Xi Jinping of China embarked on his first trip to Russia since the invasion of Ukraine. He said China was ready “to stand guard over the world order based on international law” alongside Russia and expressed support for Vladimir Putin.
The issue of child abduction during the war in Ukraine did not gain much media coverage until the Yale Humanitarian Research Lab published a report in February. Funded by the US State Department, the report alleges that the Russian federal government has sent at least 6,000 Ukrainian children as young as four months to Russia during the war. The Russian government put the children up for adoption by Russian families, or placed them in “re-education” camps in Russia. In the camps, they received pro-Russia education including field trips to patriotic sites and singing the Russian national anthem. Their return date was delayed or postponed indefinitely.
The ICC said that these acts demonstrate “an intention to permanently remove these children from their own country”. In fact, before the report was published, the Russian government admitted that 350 children were adopted by Russian families. Maria Lvova-Belova, the Presidential Commissioner for Children’s Rights in Russia, has also thanked Putin for being able to adopt a boy from Mariupol in a TV programme, and complained about the Ukrainian children speaking badly about Putin.
The Russian government admitted that 350 children were adopted by Russian families
The US, UK and EU welcomed the Court’s decision and the Ukrainian government described it as a historic beginning. On the other hand, the Kremlin dismissed the accusation, saying that any decision by the Court is “null and void”. Lvova-Belova thanked the international community’s appreciation for their effort to rescue the children from war zones, and Putin continued his meeting with Xi. He has shown no sign of fear or guilt. What does the warrant actually mean then? What will happen to Putin next?
Established in 1989, the ICC is a supranational organisation which operates independently from the United Nations. Though it is a court of last resort that targets the government leaders and officials whose power cannot be checked by the national court, it is not meant to replace a country’s justice system. Having no power to arrest suspects, it relies on countries to make arrests and transfer suspects to it. The warrant brought no immediate legal consequence to Putin, and it’s unlikely he will be arrested by any national courts, considering his political role in the ongoing global power struggle.
More importantly, the power of the ICC is constrained by its membership. It can only exercise jurisdiction within its 123 member countries, or over crimes referred by the United Nations Security Council. Yet three of the five permanent members of the UN Security Council, the US, Russia and China, are not member states. Considering Russia’s veto power in the UN and the court’s limited prerogatives over Putin, it is difficult for the trial to proceed.
Justice delayed is justice denied, but international justice barely moves
Investigations at the ICC usually take many years. For example, Ukraine made two formal requests for the ICC to investigate Russian war crimes during the Maidan Revolution and the Russian occupation of Crimea in 2014. The ICC began the preliminary examination of war crimes committed by the Russian government in 2014, and declared that there was enough evidence of war crimes in December 2020. However, further steps were slowed by COVID-19 pandemic and lack of resources. The Russo-Ukrainian War in 2022 raised global attention on Ukraine. After the war erupted, 45 member states referred the situation in Ukraine to the ICC. The joint referral enabled the ICC to open an investigation into the situation in Ukraine from the end of 2013 onwards. The investigation started in 2022, 8 years after the fact and in the midst of an unprecedented conflict.
Due to inefficiency, only a handful of convictions have been won in the ICC. It issued an arrest warrant for the President of Sudan, Omar al-Bashir, on genocide charges in 2010. He is currently imprisoned in Sudan but has yet to be transferred to The Hague. The ICC also investigated Libyan leader Muammar Gaddafi’s war crimes during the Libyan Civil War in 2011, but he was killed in a NATO attack after the warrant was announced. In both cases, the criminals were ‘punished’ yet not directly by the ICC.
While the ICC’s decision may be insignificant from a legal perspective, it brings diplomatic impacts on Russia. Under the arrest warrant, Putin cannot freely travel to the ICC’s 123 member states. He will also risk an arrest if he travels to non-allied countries. It restricts his participation in diplomatic meetings or international summits, further deepening his isolation in the international community. The moral condemnation brings a level of embarrassment for Putin and his allies because Putin is now marked as a pariah. These diplomatic effects will be worsened if this arrest warrant triggers more accusations of war crimes in the future. For example, hundreds of civilians’ bodies had been found in Bucha and Izium, and the Russian forces had carried out air strikes on a children’s shelter. Nearly 4,000 civilians have been killed during the war.
The moral condemnation brings a level of embarrassment for Putin and his allies because Putin is now marked as a pariah
Despite the arrest warrant, Xi continued his meeting with Putin. It is uncertain whether the arrest warrant can effectively erode Putin’s international status and restrain his aggression. The long legal procedure will reduce media coverage and weaken the deterrence effect over time too. While the diplomatic impacts are in doubt, this arrest warrant sheds light on the politics of the ICC. The ICC’s attention on Ukraine grew only after the war broke out, and the preliminary examination of the child’s abduction took a much shorter time than the previous cases. Besides, the key evidence of the war crime, the Yale Humanitarian Research Lab’s report, was funded by the US which is not a ICC’s member state. The ICC usually prosecutes war crimes in countries where the court systems are too weak to conduct the prosecutions, but Ukraine’s courts had successfully charged 135 suspected war criminals on their own by the end of last August. If the Ukrainian war did not erupt, would the world bother with Russia’s continuous aggression? If the Ukrainian war has not disrupted the global energy and food provisioning system, would the US government interfere?
The intertwinement of the judiciary and politics has undermined the ICC’s supposed impartiality for long. In the long lasting conflicts in the Middle East, countless schools and hospitals have been bombed and unconvincingly played off as “incidents” by Afghan and American forces. However, none of the states involved have been charged by the ICC, as the affected countries such as Israel and Iraq are not members. Besides, written with traditional warfare concepts in mind in 1949, the Geneva Convention could no longer provide the court with updated legal basis and definition of war crimes. It could not define whether the Islamic State (IS) or the US air force are the ‘armies’ in the Middle East’s conflicts, and nuclear weapons are not listed as one of the banned weapons. The international dynamic is becoming more and more complex. Without actual powers of arrest, a modernised legal backup and comprehensive membership, the ICC is struggling to maintain world peace and justice.
After a year of war in Ukraine, the situation is still changing every day. In March 2023, the UK supplied ammunition with depleted uranium to Ukraine, Japan’s prime minister met Zelensky for the first time, and the Chinese and Russian presidents agreed on a series of “strategic cooperation”. After all, it is the people and justice sacrificed on the negotiation table.