It has been three days since the International Criminal Court (ICC) announced it had issued arrest warrants for Russian President Vladimir Putin and his Commissioner for Children’s Rights Maria Lvova-Belova. The alleged war crimes are vile. They involve the unlawful transfer and deportation of children from Ukraine into Russia, apparently so that their Ukrainian lives and identities can be erased. Professor Bec Hamilton, herself a former member of the ICC prosecutorial team, brilliantly summarizes the law and logic behind going “straight to the top” of the Kremlin with these warrants in this Just Security article. The question now is whether that logic will be borne out in practice.
The hopes behind warrants announced on Friday are several. The ICC’s press release notes that the warrants address an ongoing crime – children continue to be abducted – and expresses a hope that the ICC’s action will have a deterrent effect on ”the further commission of crimes.” There is a hope that at least mid-level officials will think twice before putting themselves in the ICC line of fire. Commentators also hope the warrants will taint Putin’s leadership domestically and isolate him internationally, including by making it more difficult to travel to ICC member states (which now are under a treaty obligation to arrest him and deliver him to The Hague), and perhaps even soften up Russia for a settlement favorable to Ukraine.
These are entirely legitimate things to hope for, but it would be a mistake simply to chart aspirations. We must also keep close track of whether they are realized. These are, after all, similar to the aspirations that animate the ICC in many situations where it intervenes. Indeed, they are very much the aspirations that I used to articulate when advocating support for ICC interventions as part of my job marshaling U.S. atrocity prevention efforts at the Obama National Security Council. But the reality is that the ICC’s record of achieving either its own goals, much less the sometimes grander ones that others may set for it, is patchy. If for no other reason than to calibrate expectations for its performance, the question of whether these aspirations are achieved in practice bears watching.
Though it’s a sensitive topic to broach, we also need to keep careful track of possible negative effects from the prosecution. Even the remote specter of ICC prosecution can correlate with bad or bizarre behavior. In the Bush administration, the United States enacted a statute (still on the books) that arguably authorizes the president to invade the Netherlands to signal that the court should keep its hands off U.S. servicemembers. The Trump administration sanctioned officers of the court because of their role in investigating alleged U.S. offenses in Afghanistan (which the Biden administration reversed). Will the wheels of justice deliver the intended benefits in the present case or will we instead see Putin become more paranoid and dangerous, perhaps acting even more atrociously to demonstrate his defiance of the court? Horribly, in the wake of the ICC’s announcement, Russian authorities have already indicated more child deportations “are on the way.” Today, Dmitry Medvedev, Deputy Chairman of the Security Council of the Russian Federation, threatened to launch a hypersonic missile at the court and wrote that the ICC judges should “look carefully at the sky.”
Of course, the ICC does not exist in a geo-political vacuum, and its impact on international relations also deserves careful attention. We should keep a close eye, for example, on the implications of these prosecutions for North-South relations – especially if countries in the former camp look to the warrants as a basis for arguing that Putin be treated as a pariah, and countries in the latter argue that this is not in their interest.
We should in particular watch to see if South Africa allows Putin to travel unbothered in and out of the country for a BRICS summit scheduled for August and whether Brazilian and South African leaders appear indifferent to his fugitive status. If they do, it could damage the court’s credibility, as both countries are ICC member states. For its part, South Africa has thus far said it is “aware of its obligations” but made no specific commitments. (Pretoria hosted ICC fugitive Omar Bashir, then the Sudanese head of state, in 2015, evading a judicial process to compel his arrest.) In the event Brazil, South Africa or other states shrug off the warrants, will they cite the United States’ position that the ICC ought have no power over states that have not submitted to its jurisdiction?
The West will also have to struggle with the question of how to engage with Russia at the UN and elsewhere. Since Russia’s all-out invasion of Ukraine last February, the UN Security Council has somehow muddled through notwithstanding the crisis, among other things renewing the UN assistance mission in Afghanistan and a channel for cross-border assistance into Syria. What implications will ICC developments have for cooperation on these and other matters?
Then there are questions about whether the prosecutions could affect a future peace process. Imagine, for example, a scenario in which Moscow insists on erasing the warrants as a condition to agreement. Will Western powers feel constrained to throw up their hands and say they can’t interfere with an independent court? Although Article 16 of the ICC Rome Statute (the court’s constitutive treaty) creates a mechanism for the UN Security Council to suspend proceedings for a year at a time, this is unlikely to satisfy the demand for complete and unconditional discharge of liability that one could imagine coming from Putin. Whether the Security Council could exercise other powers to accomplish that goal, whether its members would be willing to do so, and whether any of this would be broadly viewed as legitimate are all questions that we may at some point have to face.
Depending on which Russian officials the court has targeted by that point, even the location of the peace process could be shaped by the ICC’s actions. Switzerland, an ICC state party, might not be a viable site — it would have a treaty obligation to arrest any negotiators who are subject to a warrant and deliver them to the Hague. For better or worse, the U.S. would be under no such legal obligation but one could imagine Russia feeling that it would be less than neutral ground. Perhaps China, searching for a mediation role, would host. Or India? Or a Gulf State? But we’re getting ahead of ourselves.
Finally, we should take a hard look at whether the court emerges from this process stronger or weaker. Will it have enhanced legitimacy for having taken on Russia’s strong man and delivered a measure of justice for his victims? Or will it appear weaker for having tried and failed?
It would be wrong to assume either the best or the worst for how the scorecard will look when events have unfolded, and we need not make any predictions. Rather, the important thing is to keep very careful track of what actually happens – good and bad. Five years working the accountability beat in the U.S. government left me with as many questions as answers about how this project can be most effective. As I reflect back on that experience, I sometimes worry that policy and action in this area tend to be driven by narratives about what lawyers hope will be outcomes rather than evidence-based analysis. We should do what we can to close that gap between narrative and empiricism.
The ICC prosecutor has made a strong move. I fervently hope it delivers good results, starting with an end to child abductions and justice for the victims. We should record faithfully what goes well. But we should keep close tabs on what does not go right, and make a clear record of that too. This is a key moment to observe how the difficult tensions between justice and peace will play out in a very high stakes geopolitical context. While these tensions are treated as almost a cliché, they are, unfortunately, still very real. We should hope for the best outcomes, support efforts in that direction, and learn all we can along the way.
Editor’s Note: This piece was updated to reflect developments on March 20, 2023.