On March 17, 2023, the International Criminal Court (ICC) issued a warrant of arrest against President Vladimir Putin and Maria Lvova-Belova, Russia’s commissioner for children’s rights, for the crime against humanity and war crime of the abduction and unlawful deportation of Ukrainian children to the Russian Federation, as rightly stated under Article 8(vii) and Article 7(1)(d) of the statute, respectively.
This is in line with the statement of the court, which reads: “[t]here are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation.”
The swift action of the International Criminal Court on the allegation of war crimes perpetrated in Ukraine is highly commendable, but can there be swift justice in the action considering the surrounding circumstances of the allegation? This is because there are things the court can and cannot do on the matter.
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The scope of what the court can and cannot do can be inferred from its jurisdiction. Article 4(2) of the Rome Statute, the statute of the ICC, provides that “[t]he Court may exercise its functions and powers, as provided in this statute, on the territory of any State Party and, by special agreement, on the territory of any other State”.
One thing that is clear from the above Article is that the court can assume jurisdiction over the territory of any State that is a signatory to the statute. However, under the above provision, the court can also assume jurisdiction over the territory of any other State that is not a signatory to the statute, provided there is a special agreement to that effect. Notwithstanding the above provision of Article 4(2) of the statute, neither the Ukraine nor the Russia is a party to the Rome Statute, which would have given the court power over the two countries. This, in the minds of many, has created confusion as to whether the court can assume jurisdiction over the matter or not. But research light has been beamed into the confusion by the declaration of Ukraine to accept the ICC’s jurisdiction over the crimes committed on its territory.
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In 2014, Ukraine made a declaration to accept the ICC’s jurisdiction over crimes committed on its territory; whether Ukraine had foreseen Russia’s inversion by then is a question of fact. This declaration, however, gives the ICC the power to exercise its jurisdiction over any State that commits crime in Ukraine, even if the State is not a signatory to the statute. Therefore, regardless of whether Russia has not agreed to the ICC’s jurisdiction or is not a signatory to the statute, the court has the power to prosecute any Russian suspected of committing war crimes, crimes against humanity, or genocide on Ukrainian territory.
Considering the position of the Statue on the crimes committed by Russia in Ukraine, the Russia invasion was a clear act of “aggression” under international law, which led to the abduction and unlawful deportation of Ukrainian children since the invasion started, but when this was discussed for inclusion in the statute, most State parties did not want the ICC to assume jurisdiction unless both the aggressor and victim State agreed to it. In this case, however, the aggressor (Russia) has not agreed to any ICC jurisdiction, thus prosecuting the crime of aggression is out of the question. This is in line with the provision of Article 15 (bis) (5), which states: “In respect of a State that is not a party to this statute, the court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”
But can prosecution of the crime of abduction and unlawful deportation of Ukrainian children see the light of day? The catch here is that, by the provisions of Article 4(2) of the statute, the court cannot assume jurisdiction over Russia. Notwithstanding, however, the court has no power to arrest sitting heads of State or bring them to trial and instead must rely on other leaders and governments to act as its sheriffs around the world. Therefore, President Putin as a sitting president is immune under international law from criminal prosecution in foreign jurisdictions. Though the ICC normally does not recognize such immunity, but Putin’s status as the incumbent president of a State that is not a party to the Rome Statute might still shield him from the court’s jurisdiction.
Though the court has previously exercised its jurisdiction against some sitting heads of State, but it was only in cases where the president was from a State party or the UN Security Council was engaged in bringing the case to the ICC. The UN Security Council has mostly been ignored on this ongoing conflict because Russia is a permanent member of the body.
Conclusively, therefore, the legality of the ICC’s ability to exercise its jurisdiction against President Putin while he is still in power is questionable. This is because there will almost definitely be litigation regarding whether the court has the authority to do so or not, taking into account Article 4(2) and Article 15(b)(5) of the statute, provided the prosecutor decides to bring a case against him.