On Monday, March 20 in Moscow, Xi Jinping will meet a Russian leader under an international arrest warrant. The International Criminal Court prosecutes Vladimir Putin for the war crime of "deportation...

ICC mandate against Putin: "This is a strong message from the court against the impunity of the powerful"

Russian President Vladimir Putin addresses the media after the Caspian Sea Rim States Summit in Ashgabat, Turkmenistan, Thursday, June 30, 2022. AP - Dmitry Azarov

Text by: Sylvie Noël Follow

7 min

On Monday, March 20 in Moscow, Xi Jinping will meet a Russian leader under an international arrest warrant. The International Criminal Court is prosecuting Vladimir Putin for the war crime of "unlawful deportation" of Ukrainian children during the Russian invasion. The ICC has also issued an arrest warrant for Maria Lvova-Belova, Russia's presidential commissioner for children's rights, on similar charges. The Ukrainian president welcomed a decision "historic, which marks the beginning of a historic responsibility" while the Kremlin considers for its part that it has no legal value. Sylvie Noël asked Sandrine de Sena, doctor of law, specialist in international criminal law, associate researcher at the Thucydides Center of Paris-Panthéon-Assas University and former member of a defense team before the International Criminal Court, how she analyzed this decision of the Court.

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Sandrine de Sena: This is undoubtedly a historic moment for international criminal justice. This is the first arrest warrant against the leader of a permanent member state of the United Nations Security Council. We are also facing indictments for specific war crimes, deportation and illegal transfer of Ukrainian children to Russia. The timing is also, I think, not trivial. 2 days ago, the United Nations International Commission of Inquiry had stressed the emblematic nature of these crimes. Vladimir Putin and the Russian Commissioner for the Rights of the Child are also individually prosecuted as senior officials. This is a strong message from the Court against the impunity of the powerful, which finally says that no one has a pass for the commission of crimes for which the Court has jurisdiction.

RFI: But the ICC is not recognized by Russia. Russia does not extradite its citizens. Despite all these limitations, this decision of the ICC is a strong gesture?

Sandrine de Sena: We are facing an unprecedented situation here, neither Russia nor Ukraine are part of the Rome Statute. It was thanks to two ad-hoc statements made by Ukraine in 2014 and 2015 that the prosecutor was able to establish his jurisdiction and investigate crimes committed in Ukraine. So, some might say that this is a political decision, but I think there is an important clarification to be made to these criticisms. While it was the Prosecutor who requested the Pre-Trial Chamber to issue a warrant of arrest, it was the judges, not the Office of the Prosecutor, who considered that there were reasonable grounds to believe that war crimes had been committed and that it was therefore necessary to issue a warrant of arrest.

How do you analyze the fact that the ICC chose to directly target the Russian president? It could have initially pursued mid-level officials and gradually traced back to Vladimir Putin. And here, it's the opposite.

Yes, this is clearly a bold move by the Court that actually represents a break with the criminal policy usually displayed by the prosecutor's office, which is normally to prosecute mid-level perpetrators, or ultimately perpetrators. The Court really decides here to target the highest official, and I think that is a welcome decision.

The ICC has also chosen to make the arrest warrant public. It could have remained secret, as is often the case.

The warrant could indeed have remained secret, which is generally the case. The Pre-Trial Chamber comes here to say that the arrest warrant was made public in the interests of justice, and I believe that this sends a strong message first of all to Vladimir Putin, who sees his movements necessarily restricted. But it also sends a strong message to States parties that must cooperate with the Court and that are ultimately the only ones who can make arrests since, as we know, the Court does not have a police force. I believe that this is a way for the Court to say that the ball is now in the court of the States parties.

Can we expect other mandates?

Yes, probably. There is nothing to prevent the Court from issuing other arrest warrants, this time for middle-level authors.

This arrest warrant concerns the abduction and deportation of Ukrainian children. Couldn't the ICC have prosecuted Vladimir Putin over the bombing and destruction of civilian infrastructure this winter in Ukraine?

In fact, as the Commission of Inquiry pointed out in its report, these crimes are quite emblematic. And when you read the first lines of the preamble to the Rome Statute, reference is made to children and crimes that are committed against civilians, populations, and first and foremost against children. This is a theme that is quite sensitive, that speaks to everyone. So, I obviously think that it is not trivial in this context.

When you talk about the ICC's willingness to involve states parties, we remember Omar al-Bashir and the episode of South Africa not wanting to arrest him while the Sudanese president was on its territory. We risk facing the same situation on the part of some countries?

Exactly. In fact, it is clearly reminiscent of the Omar al-Bashir precedent. The ICC had ruled that South Africa had failed in its duty to arrest when the Sudanese president visited its territory. The ICC had refrained from sanctions. At the same time, however, the Rome Statute does not provide for such in the event of non-cooperation. The question that arises here is that of immunity, which is ultimately linked to the official function. Article 27 of the Statute excludes it, but here we are faced with the question of the personal immunity of State leaders who are not parties to the Rome Statute, and South Africa, for example, had considered that it could not arrest the Sudanese Head of State. So, I don't know if it's a coincidence of the calendar or if South Africa is out of luck, but Vladimir Putin normally has to go to the BRICS summit, which is being held in South Africa, this summer. Therefore, we will have to see again whether the Court finds itself facing a failure after the previous episode that we have just mentioned.

In terms of comparisons, does this arrest warrant issued against Vladimir Putin recall, in your opinion, the one that targeted former Serbian leader Slobodan Milosevic?

No, I would be more inclined to draw a comparison with the case of Omar al-Bashir, but not necessarily with that of the former Serbian leader, especially since it was not the same court. It was the Tribunal for the Former Yugoslavia, here it is the International Criminal Court, so I would not make a comparison. Personally, I doubt that the Russian authorities will ever be ready to hand over Vladimir Putin to the International Criminal Court, but time will tell.

When we talk about Vladimir Putin's trips abroad, his participation in international forums, we can think of the next United Nations General Assembly next September, in New York.

Certainly, I've thought about that too. These movements will necessarily become limited, complicated and on this point, only time will tell us how things will evolve. In any case, this is likely to present difficulties for diplomats in the context of negotiations for a possible peace process. The question is whether this will encourage peace negotiations or, on the contrary, be a brake on negotiations.

► Read also War in Ukraine: the ICC issues an arrest warrant against Russian President Vladimir Putin

ICC mandate against Putin: "This is a strong message from the court against the impunity of the powerful"

ICC mandate against Putin: "This is a strong message from the court against the impunity of the powerful"

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