The Conversation

Putin and the ICC: history shows just how hard it is to bring a head of state to justice

The arrest warrants issued recently by the International Criminal Court (ICC) for the Russian president, Vladimir Putin, and his children’s commissioner, Maria Lvova-Belova, represent the first time officials of a permanent member of the United Nations security council have been indicted for a war crime.

The charge is that they presided over the forced deportation of Ukrainian children from areas occupied by the Russian military. “There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes,” the ICC said in a statement on March 17.

The ICC is reportedly considering evidence of alleged crimes against humanity committed by another permanent member of the security council, China. The crimes under investigation include disappearances, forced sterilisations, executions and the detention of more than a million people.

Lawyers working on behalf of Uyghur exiles from the Xinjiang region where the crimes have allegedly taken place have reportedly submitted new evidence. Chinese foreign ministry spokesperson Wang Wenbin called on the ICC to “respect the immunity of heads of state from jurisdiction under international law”. It is an indication that Beijing is at least taking the prospect of the ICC mounting a case against senior Chinese officials seriously.

It has been rare for a head of state to face justice in the court. Laurent Gbagbo, the former president of the Ivory Coast, was charged in 2011 with crimes against humanity along with Charles Blé Goudé, but he was acquitted in 2019. The court’s judgment said the prosecution had failed to “prove the existence of a common plan and/or a policy of large-scale or systematic attack”, the burden of proof required by the charges.

The ICC issued an arrest warrant in 2011 for the former leader of Libya, Muammar Gaddafi, for crimes against humanity and war crimes. But he was murdered within months of the warrant being issued. At the time, ICC prosecutor Luis Moreno-Ocampo said the court had strong evidence of crimes including the shooting of civilians.

The case of former Sudanese president Omar al-Bashir remains active. Bashir was issued an arrest warrant in 2009 for orchestrating a campaign of mass violence including murder, torture, and rape against non-Arab ethnic groups in the Darfur region of west Sudan since 2003. At the time Sudan did not recognise the ICC, and the African Union also rejected the charge, alleging that the ICC was biased against African nations.

Bashir was forced from power in 2019 and jailed for two years for corruption and financial crimes. In 2021, Sudan voted to ratify the Rome statute of the ICC, but the decision has yet to be approved by Sudan’s highest authority, the sovereign council. There is also a debate whether the conflict in Sudan – like the war in former Yugoslavia and the genocide in Rwanda – might be cause to establish a special court for Darfur in Sudan.

A high bar

As far as the charges against Putin are concerned, much may hinge on internal Russian politics. If the president is deposed, Russia could choose to ratify the Rome Statute and hand Putin over for trial. Or it could set up its own court to investigate alleged war crimes in Ukraine.

The European Union has also agreed in 2023 to establish a new tribunal to prosecute Russian crimes of aggression committed during the war in Ukraine. In the meantime, Putin risks being handed to the ICC by any state he visits which recognises the court.

But for now, the warrant seems more symbolic. It effectively means that for much of the world – at least the 123 countries that recognise the ICC – Putin is a pariah, and isolated in the international community.

The ICC’s charge will not necessarily be easy to prove. Investigators would need to show that not only did the alleged abductors take the children against their will, but that they also did not intend to return the children to their legal guardians. In addition, the Rome statute requires that the prosecution must prove that “the perpetrator intended to destroy, in whole or in part, that national, ethnic, racial or religious group”.

Other charges the ICC might attempt to bring – for example, deliberately targeting civilian infrastructure such as medical facilities – will be equally difficult to show intent for.

Heads of state

But the fact that a sitting head of state has been charged with a crime against humanity is significant. There are those who believe that George W. Bush and Tony Blair should have been indicted with war crimes after the 2003 invasion of Iraq. Incidentally, the pair were found guilty of crimes against peace by a war crimes tribunal in Malaysia in 2011.

Another leader who could realistically be concerned at facing ICC charges is the ruling head of the Myanmar military or Tatmadaw, Min Aung Hlaing, for his role in directing alleged war crimes and crimes against humanity towards Myanmar’s Rohingya Muslim minority. Myanmar is not a party to the Rome statute, but because “an element” of the crimes was perpetrated in Bangladesh – which is under ICC jurisdiction – an investigation has been opened.

Israeli prime minister Benjamin Netanyahu is also vulnerable to accusations associated with alleged Israeli crimes in the state of Palestine, which was admitted as a state party to the ICC in 2015. The ICC launched an investigation in 2021 for alleged Israeli crimes in the Palestinian territories since 2014, news which Netanyahu reacted to by declaring: “The state of Israel is under attack this evening.”

Israel has said it will not cooperate with the investigation. Similarly, it is hard to see Russia reacting any differently. But time and a growing mountain of evidence are against them. As one Rohingya victim argued to the ICC: “Even if it takes long time to resolve the victims’ case and to get justice … we want the ICC to get our justice.”

The Conversation

Catherine Gegout receives funding from the Leverhulme Trust, the British Academy and the European Union.