The judges of the Pre-Trial Chamber of the International Criminal Court (ICC) have issued an arrest warrant against two individuals in the context of the situation in Ukraine, namely Russian President Vladimir Putin and Maria Lvova Belova, Commissioner for the Rights of the Child to the President of the Russian Federation.

The ICC, especially the Pre-Trial Chamber, including the Prosecutor of the Court, has charged Russian President Putin with the war crime under Article VIII of the ICC Statute, which consists of the Russian President inducing Russian soldiers to commit acts that fall within the scope of serious violations of the Geneva Conventions of August 12, 1949.

These grave violations consist of violations against persons and property protected by the relevant provisions of the Geneva Convention, such as the unlawful transfer of population and children, the illegal transfer of the Ukrainian population, the direct or indirect transfer by the State of Russia of parts of its own civilian population into the territory it occupies and the deportation and transfer of all or parts of the population of the Ukrainian State within or outside this territory.

We find that the Pre-Trial Chamber used the term "Russian occupation" in its decision on the case brought before it by the State of Ukraine, especially when it spoke in its decision clearly that the State of Russia had committed war crimes in the occupied territories of Ukraine at least as of February 24, 2022.

We find that the Pre-Trial Chamber tried to completely neutralize the Russian State from existing war crimes and war, especially when it recognized that Russian President Putin was the one who bore this under the penalty of individual criminal responsibility under Article 25 of the Statute of the International Criminal Court. We find that the court wants to differentiate between the Russian state and the Russian president so as not to make the Russian people and the Russian leadership in solidarity with President Putin, and therefore, perhaps with the aim of creating opportunities for division within the Russian establishment and leadership.

The Pre-Trial Chamber's raising of the issue of individual criminal responsibility of the Russian president is not new, as the principle of individual criminal responsibility was approved, and it did not become clear until after the Second World War, and the idea of individual criminal responsibility is considered recent, perhaps compared to international civil responsibility.

This does not explain that the ICC had no attempts before the war between Russia and Ukraine, but the principle of individual criminal responsibility and lack of habituation in his official capacity is very important in the justice of international criminal justice.

But what is the role of the rulings of the previously established international criminal courts in laying the foundations of this principle, up to the International Criminal Court, in order to preserve the individual responsibility of the Russian president? Is the aim of that resolution to prevent impunity for the perpetrators of international crimes?

If this were true, there are those who have aided, abeited or otherwise assisted for the purpose of facilitating or attempting to commit a war crime, including providing the means to commit it, even though the Statute of the International Criminal Court speaks expressly of a person who ceases to make any effort to commit the crime or otherwise prevents the completion of the crime is not liable to be punished under the present Statute for attempting to commit the crime if he renounces completely and voluntarily About criminal purpose.

But I am surprised that the Pre-Trial Chamber wanted only the main accused to be the Russian President, who must bear individual criminal responsibility, and omitted the last paragraph of Article 25, paragraph 4, on the responsibility of States under international law for war crimes?

So I think the Pre-Trial Chamber's decision wants to preserve the individual criminal responsibility of the Russian president. Referring to the role of the International Court of Justice on international responsibility for the Russian and Ukrainian war away from the International Criminal Court, we find that its contribution was to the interpretation and development of the system of international responsibility and related rights from being the main judicial organ of the United Nations, and in all judicial rulings issued by it in state disputes, and in advisory opinions or opinions on legal issues for international organizations that have the right to request an advisory opinion or opinion.

So it can be said:

  • First, the International Court of Justice has adopted a system of international responsibility such as that of civil liability (contractual and tort) under private law in the domestic sphere, whereby international disputes are then and under its Statute disputes of compensation and not disputes of punishment or criminal responsibility, thus leaving the criminal sphere to the International Criminal Court, which can be considered as international responsibility in its operation and under its Statute as international civil responsibility.
  • Secondly, within the framework of the system of international responsibility, the Court has applied the principles of the Charter of the United Nations as principles and rules of customary international law as well.
  • Third, the Court distinguished between ruling of lack of jurisdiction and the assumption of responsibility by a party for international responsibility, in the sense that rights are not wasted around the Ukrainian-Russian war, that the aggressor state is not exempt from responsibility for its actions, and that no one can legitimize unlawful acts or situations.

Therefore, in the conclusion of this article, he explained that the Pre-Trial Chamber wanted to raise the full responsibility of the Russian state at a later stage and not now, in order to create a legal and political division within international and Russian circles, pushing it - perhaps - to pressure Putin and Russian circles to end the Russian war on Ukraine, or perhaps it has information that we are approaching a full-fledged war whose leader is the Russian president, so the International Criminal Court decided to stop it before it begins by issuing an arrest warrant against the Russian president.

The fundamental question I would like to ask in this article remains: how will States parties and non-parties to the ICC deal with the arrest warrant? Will the ICC resort to states parties and the UN Security Council to pressure states to arrest the Russian president? I believe that the coming days will be the ICC in a real test.