ICC’s arrest warrant on Putin doesn’t make Russia pariah state, lawyers say

The International Criminal Court (ICC) recently issued arrest warrants against Russian President, Vladimir Putin and a member of Putin’s government, Children’s Rights commissioner, Maria Lvova-Belova, who is the official at the centre of the alleged unlawful deportation of thousands of Ukrainian children to Russia.

This is the first warrant issued by ICC for crimes committed in Russia-Ukraine war and a rare case issued against a siting president, putting Putin in the company of Libyan leader, Muammar Gaddafi and Sudanese president, Omar al-Bashir.

In deciding to issue the warrants, the ICC pre-trial chamber of judges considered keeping the warrants secret but decided that making them public could “contribute to the prevention of further commission of crimes”.

The number of children taken from Ukraine by Russian forces is unknown. Last month, the Yale Humanitarian Research Lab published a report alleging that at least 6,000 children from Ukraine had been sent to Russian “re-education” camps in the past year. In a statement, the ICC prosecutor, Karim Khan, said: “Incidents identified by my office include the deportation of at least hundreds of children taken from orphanages and children’s care homes.”

Khan added that many of the children had been put up for adoption in Russia and that Putin had issued a decree expediting the conferral of Russian citizenship on the children, making them easier to adopt.

However, Moscow has rejected an arrest warrant issued by the ICC against Putin.

Spokesperson for Russia’s Foreign Ministry, Maria Zakharova, in a statement, said the warrants have no meaning for Russia, including from a legal point of view because Russia is not a party to the Rome statute of the ICC and bears no obligations under it.”

Lvova-Belova told Russian media that the arrest warrant reflected “appreciation” for her work “to help the children of our country, that we don’t leave them in the war zone, that we take them out”.

Russia has characterised reports of forcible relocation as “absurd” and said it does its “best” to keep minors with their families.

Opinions by legal scholars are divided regarding the jurisdiction of the ICC to issue those arrest warrants, and to subject those individuals to criminal proceedings.

According to Senior Partner, LawChest, Chijioke Ifediora, Article 5 (2) of the Rome Statue permits the United Nations Security Council to recommend acts of aggression to the ICC. This, he said, will invariably mean that States that are not signatory to the Rome Statutes can be brought under the jurisdiction of the court through the actions of the United Nations. He explained that the United Nations Security Council Under Article 39, Chapter VII of the United Nations Charter, will recommend situation where acts of aggression have occurred to ICC.

Ifediora said that because Russia is not a member of ICC, it would be illegal to commence legal proceeding on the national of a non- State party or issue a warrant of arrest against a Head of State or compel state parties to the Rome Statute to arrest a Head of State whose state is not a signatory to the Rome Statute and equally bring such individual to the ICC for trial because the process of criminal proceedings is as important as the result.

“The only likely alternative to legitimise the issuance of an arrest warrant or bring the Head State of a sovereign country under the jurisdiction of the ICC, is only on matters of aggression, where the United Nations Security Council recommends such State or national of such State to the ICC on matters of aggression only.

“Though this is arguable, as the fundamental principle of law of treaties under international law is explicitly represented by the term “Pacta sunt servanda” which means in Latin “agreement must be kept”.

Sovereign state parties to a treaty are bound by the terms of treaties under international law. Treaties and charters entered by a sovereign are akin to a contract. When member states subscribed to the United Nations Charter, they were doing so on the express terms and not by proxy to be subjected to the jurisdiction of the ICC that was neither in existence or contemplated or overtly expressed at the time. Equally so, is the fact that Russia is a permanent member of the United Nations Security Council with an unfettered right to veto Security Council Resolutions,” he explained.

Whether the arrest warrant makes Russia a Pariah state, Ifediora said it would be unlikely, both objectively and subjectively. Though they may be economically and politically isolated, he noted, its nothing new to the former Soviet bloc.

He said the only time Russia embraced the west was between 1992 after the cold war up until 2001, for most of the 20th century and the early 21st century, Russia has been a threat to the West.

“Russia has lived mostly in isolation and has grown with pariah state tag. Alex Moreland, a journalist, described a “Pariah” as anyone who’s been excluded from wider society while a “pariah state”, is any country that’s treated as an outcast by the rest of the international community.

It is difficult to classify a State as Pariah state where there is no yardstick or criteria for determining one. When Russian invaded Ukraine with all the condemnation, Germany was still getting its gas from Russian, India unperturbed by public queries continued its trades with Russian as well as China. A nation that is unaccepted in a particular hemisphere, may enjoy acceptance in another continent, by virtue of trade, hence the classification of Pariah state becomes subjective. Russia has been excluded from many sports and cultural events such as, the Formula 1 Grand Prix, The UEFA Champions League and many more, yet other countries such as Belarus, China, and Indian have not considered them a Pariah State.

“There are opinions that a country should be understood as a pariah state if its actions would pose substantial threat to its neighbours, for example, if it acquired nuclear weapons. North Korea, for example, is sometimes considered a Pariah state by the West because it has seceded from the Treaty on the non-proliferation of Nuclear Weapons, but this has not in any way limited its acceptance by another state, despite economic sanction, it has not been perceived as a Pariah State by China,” he stated.

The International Criminal Court in The Hague | File photo: Reuters

According to him, whether there are sufficient legal grounds to issue a warrant of arrest against Putin is a matter of law. The ICC in 2019 announced it would not pursue any investigation into alleged war crimes by America troops and allies in Afghanistan. The Judges rejected a request by the Court’s prosecutor to investigate war crimes alleged to have been committed by America Military and Intelligence Services in Afghanistan.

The American President at the time, Donald Trump, stated that America has “consistently declined” to join the Court because of the its “broad unaccountable prosecutorial powers” and the threat it poses to “American Sovereignty.” America signed but never ratified, the Rome Statute that founded the ICC.

The warrant of arrest goes to the roots of Russian as sovereign nation. Enforcing the warrant of arrest will not only be difficult but a threat to world peace. While the President of Russia may avoid countries that are signatories to the Rome Statute despite these countries not having the authority to arrest a national of a state not subject to the Rome Statute, any attempt to initiate arrest in any State that is a State Party but does not consider Russian as a Pariah State will equally be a threat to world peace.

Acting Dean, of Law,  Caleb University, Dr. Foluke Dada, said the current arrest warrant has established that ICC is not against African leaders as some opinion suggests, but for every leader that has acted irresponsibly or criminally.

Referencing international law, she said that each country has territorial integrity, which should be preserved and free from interference of another state.

She said that the important aspect and role of the ICC is the recognition of the need to align all and protect the rights of humans across the globe.

So its pronouncement may at times look as though it is targeted at certain nations. We must recognise the fact that ICC has taken the cue of ensuring compliance with international standards and roles,” she added.

Foreign Affairs Analyst, Henry Ugwu, acknowledged that from the letters of the Rome Statute, which established the ICC, it is apparent that it can investigate, arrest, and try individuals based on their criminal responsibilities for crimes defined by the Rome Statute.

However, in practice, most of the limitations of the ICC, he noted, have not been tied to the inadequate letters of the Rome Statute as much as they have revolved around the practical implementation of the jurisdiction and objectives of the Court.

“For example, since the Rome Statute entered into force in 2002, not a single leader of a permanent member of the United Nations, or any so-called developed or first-world country has been subjected to trial before the Court. The arrest warrant recently issued against Putin by the Court is unprecedented. The ICC has been recurrently accused of racism and imperialism because all persons who have been tried or convicted by the Court are from Africa or some other so-called third-world countries,” he stated.

Ugwu, however, noted that the the warrant of arrest will further accentuate the ignominious role of Russia since its invasion of Ukraine, saying that would be the only consequence considering doubts on whether the ICC can arrest the President of Russia given that the Court relies on State parties to the Rome Statute for enforcement of its orders.

“This apparent limitation will go a long way in determining whether the ICC can thoroughly investigate and possibly try those individuals because Russia has stated clearly that it is not bound by the decisions or the jurisdiction of the ICC, so any country that arrests or attempts to arrest the President of Russia may be provoking it to war. I do not see any country playing that difficult role today.

“It is also important to note that America and China also oppose the jurisdiction of the ICC. So, it would be unreasonable for America or China to meddle in the enforcement of orders of the ICC against Russia, so buttressing the difficulty of enforcing any orders of the Court against Russia. If the warrant of arrest was issued against the President of any African or South American country, the discussion on the enforcement of the warrants would have been far less controversial. It seems that the leaders of some countries are above both the law and jurisdiction of the ICC,” he declared.
,
Goddy Uwazurike, a lawyer said that since there is no immunity before the ICC, the court could issue an arrest warrant against anyone irrespective of the person’s role or function in a nation.

Explaining further, he said, “The warrant is personal. It has nothing to do with the country or state. It attaches to Putin as a person even though the offensive actions emanate from his conduct as the President of Russia. So, Russia is not a Pariah state.

The arrest warrant was issued based on the fact deposed to by the complainant. They can only be proved during trial.”

According to him, the legal implication is that Putin has an arrest warrant hanging on his head and can be arrested at any time. There is no expiration, he noted.

The senior lawyer, however, added that ICC does not execute warrants, but relies on countries to do so.
“What it means is that Putin can be arrested any where in the world. In reality, the arresting country must have sufficient military might to arrest the leader of one of the most powerful countries in the world,” Uwazuruike emphasised.