Even before the International Criminal Court (ICC) issued an arrest warrant against Russian President Vladimir Putin accusing him of war crimes, possibilities for a negotiated political settlement of the Russian-Ukrainian war were very slim. After the ICC decision, there is no such possibility at all while Putin is still in power.
The Russian president and Russia’s children’s commissioner, Maria Lvova-Belova, are accused of overseeing the forcible transfer of thousands of children, according to the ICC statement: “there 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.”
ICC officials gave strong indications that they are going to proceed with the arrest warrants as a way of deterring further violations: “the conduct addressed in the present situation is allegedly ongoing, and the public awareness of the warrants may contribute to the prevention of the further commission of crimes.”
Speaking in London on Monday, Karim Khan, the ICC prosecutor, said that the world needs to “have the stamina” to enforce international law by trying those accused of war crimes in Ukraine. “This is a moment of crisis,” Khan said. “I don’t think that is hyperbole… We need to have the stamina to deliver on justice.” He also pled for extra cash to pursue Russian war crimes in Ukraine during the London conference, co-hosted by the UK and the Dutch government and aimed at raising cash to fund the ICC’s war crimes investigatory work inside Ukraine.
Yet despite the fanfare, the probability of a trial while President Putin remains in power is very low, because the ICC cannot try defendants in absentia. Russia mocked the warrants, declaring them not worth the price of the paper they were printed on, noting that it is not a party to the ICC. Nonetheless, there is no escaping the fact that the arrest warrant deepens the isolation of the Russian president even if it is not implemented.
The international reaction also shows a split between the West and the Global South. While most Western capitals welcomed the ICC’s move, the majority in the Global South ignored or criticised the decision. The French Foreign Affairs Ministry said in a statement: “No one responsible for crimes committed by Russia in Ukraine, regardless of their status, should escape justice.” German Chancellor Olaf Scholz welcomed the ICC decision: “The International Criminal Court is the right institution to investigate war crimes... The fact is that nobody is above the law and that’s what’s becoming clear right now,” Scholz said at a joint news conference in Tokyo with Japanese Prime Minister Fumio Kishida.
But at the EU level, the European bloc failed to issue a joint statement on the ICC decision after opposition from Hungary. Due to Budapest’s veto, the EU’s chief diplomat, Josep Borrell, issued a statement. “The EU sees the decision by the ICC as a beginning of the process of accountability and holding Russian leaders to account for the crimes and atrocities they are ordering, enabling, or committing in Ukraine,” Borrell said in the statement published on Sunday evening. On Monday, EU justice ministers issued their statement in support of the ICC decision, which Hungary, again, refused to sign.
US President Joe Biden said that Putin committed war crimes and that the ICC move was justified. The US, like Russia, is not a member of the ICC. In the past, America did not cooperate with the court in cases against leaders or officials accused of war crimes or crimes against humanity. Although there are calls by some human rights organisations for the US administration to give the ICC evidence collected by US intelligence in Ukraine related to war crimes or crimes against humanity, there is hesitation in the White House, the US State Department, and the Pentagon for fear of setting a precedent that may be used against America in the future. “I think the ICC decision is justified,” Biden said. “But the question is – it’s not recognised internationally by us either. But I think it makes a very strong point.”
The ICC has only indicted two sitting leaders, Sudan’s former president Omar Al-Bashir and Libya’s Muammar Gaddafi. Although it is unlikely that the Russian president will stand before the ICC unless there are dramatic developments inside Russia, the arrest warrant complicates Putin’s movement and makes his travel abroad risky. If Putin were to travel to a country that is a signatory to the ICC, that country is obliged to arrest him. Putin does not travel extensively but in the next few weeks, he and top Russian officials will have to decide whether the Russian president can attend a summit in South Africa, a country that is a signatory to the ICC charter. South Africa, a Russian ally, will host the BRICS summit of Brazil, Russia, India, China, and South Africa in the summer.
“We are, as the government, cognisant of our legal obligation. However, between now and the summit we will remain engaged with various relevant stakeholders,” a spokesperson for the South African President Cyril Ramaphosa, said on Sunday. In the past, South Africa has ignored arrest warrants including one for Omar Al-Bashir, who visited the country in 2015. Al-Bashir was also able to travel to other ICC member states including Chad, Djibouti, Jordan, Kenya, Malawi, and Uganda, which all refused to arrest him. Although some European officials see the ICC warrant as a symbolic move from a legal point of view, due to the difficulties of bringing Putin to answer the case against him in a dock in the Hague, the arrest warrant is not symbolic from a political point of view.
The decision means diminishing prospects for any peace talks with Russia while Putin is still in power. The calculations of Washington and its European allies may be that the ICC move will pave the way to strengthening a group within the Russian elite that sees Putin as an obstacle to any possible settlement, which opens the door to defections at the top of Russia’s political establishment and security services. The war crimes accusations against Putin also render Chinese mediation meaningless, and it puts the Chinese leadership in a difficult position. It was remarkable that the ICC decision was made only two days before Chinese President Xi Jinping’s visit to Moscow, his first since the Russian invasion of Ukraine. This bolsters up the argument of Russian officials that the ultimate goal of America and its European allies is regime change in Russia.
But America’s experiences with regime change in the past were catastrophic, especially with the commemoration of the 20th anniversary of the US invasion of Iraq this week. This may be the main consolation for the Russian regime, as there does not seem to be an appetite in Russia for regime change at the hands of external powers. The elite surrounding Putin has warned that the West wants to destroy Russia and dismantle it into several states and seize its wealth. Many Russians believe this, which means that the fighting will continue until a change in the balance of power occurs that forces one party to make the necessary concessions to stop the war.
* A version of this article appears in print in the 23 March, 2023 edition of Al-Ahram Weekly