Whether Russia’s president ever ends up in handcuffs, the International Criminal Court’s indictment is a big step in the right direction.
The internet has recently been flooded with AI-generated images of the Russian president, Vladimir Putin, being put on trial or incarcerated. But while the images are fake, international criminal justice is becoming a reality. On March 17th, after years of being mired in controversy and crisis, the International Criminal Court surprised the world by formally indicting Putin and issuing a warrant for his arrest.
The ICC’s specific charge—that Putin is responsible for the unlawful abduction and deportation of Ukrainian children to Russia, in violation of the Rome Statute establishing the court and the Geneva Conventions on the laws of war—addresses only a fraction of the offences he has committed. Putin and his inner circle are morally, and probably legally, responsible for countless war crimes, crimes against humanity and the crime of genocide. Yet, as the Ukrainian president, Volodymyr Zelenskyy, observed, the warrant represents ‘a historic decision’, not because it guarantees an arrest or trial but because it sets a precedent.
Dubious distinction
Although Putin is not the first sitting head of state to be indicted by the ICC—he shares this dubious distinction with such despots as the former Sudanese president Omar al-Bashir and the late Libyan dictator Muammar Gaddafi—he is certainly the most prominent. After all, unlike Russia, Sudan and Libya are not permanent members of the United Nations Security Council.
To be sure, some sceptics have dismissed the warrant as being merely symbolic, noting that many leading global powers—including the United States, China and India—are not even parties to the ICC. Russia itself does not recognise the authority of the court (the Kremlin declared the warrant ‘null and void’) and the Russian constitution prohibits the extradition of its citizens.
As a nuclear power and a major global supplier of hydrocarbons, Russia has ample means with which to threaten anyone who seeks to bring its leaders to justice. The former Russian president Dimitri Medvedev has already mused about launching missile strikes on the ICC building in the Hague.
Breaking new ground
Yet it is indisputable that the ICC’s chief prosecutor, Karim Khan, has broken new ground, shaking up the long-running debate among legal scholars about whether international law really counts as law. For most states, might ultimately makes right, which is why the 19th-century positivist legal theorist John Austin referred to international law as ‘law improperly so called’. Even more moderate legal philosophers such as HLA Hart were suspicious of international law, referring to it as a ‘set of rules’ rather than a ‘legal system’.
Persistent doubts about the authority of international law stem from the fact that it typically plays second fiddle to national will. In the case of the Putin indictment, Ukraine has accepted the court’s jurisdiction over its territory; but by choosing to assert its authority over a non-member state’s nationals, the ICC is sending a message that consent to its jurisdiction is not decisive. Moreover, by challenging the dangerous, longstanding notion that heads of state should be immune from prosecution, the ICC is chipping away further at the centrality of state sovereignty.
Coming 13 months after Russia’s unprovoked full-scale invasion of Ukraine, the ICC’s actions signal a decisive shift both in the war and in international law. Having been issued to raise awareness, increase vigilance and ‘prevent future crimes’, the warrant is intended to rouse the international community’s moral imagination. But more than that, the act of specifying the crimes committed against the Ukrainian population is an important component of restorative justice.
International pariah
The ICC’s investigation into Russian war crimes was prompted by requests from around 40 of its 123 members and the warrant now requires all members to detain Putin and hand him over to the court if he sets foot on their territory. While the odds of this happening are low, the case of Slobodan Milošević, the former Yugoslav president who died in ICC custody [Milošević was arraigned before the dedicated International Criminal Tribunal on former Yugoslavia—ed] demonstrates that the threat is not empty.
In the interim, Putin will be an even greater international pariah, substantially limited in his ability to take to the world stage. His attendance at the BRICS summit in South Africa in August or the G20 summit in India in September would create a vexing diplomatic dilemma for his hosts. The warrant forces the international community to pick sides (as the US, Germany and Japan have already done, in favour of the ICC) and it sends a clear message to other heads of state (not to mention Putin’s cronies).
The ICC warrant is thus a rare moment of moral clarity for the international community. Among other things, it demonstrates to those in the global south that its jurisprudence is not entirely lopsided—an understandable view given the past focus on African leaders and the failure to investigate possible war crimes committed by western forces in Afghanistan and other countries.
Wild West
But the ICC’s future success will depend on whether it can consolidate its gains and dispel the west-versus-the-rest narrative that Putin is trying to leverage. The ICC must embrace true multilateralism and develop a genuinely global jurisprudence to maintain its legitimacy.
International law is often compared to the wild west, because there is no global sheriff. But regardless of whether Putin ends up in handcuffs, the ICC’s ‘Wanted’ poster represents a step in the right direction.
Republication forbidden—copyright Project Syndicate 2023, ‘Wanted: Vladimir Putin’
Antara Haldar is associate professor of empirical legal studies at the University of Cambridge, a visiting faculty member at Harvard University and principal investigator in a project supported by a European Research Council grant on law and cognition.