27 Mar Putin Arrest Warrant: International Law and Perceptions of Double Standards
[Chidi Anselm Odinkalu (Twitter: @ChidiOdinkalu) is a Professor of Practice in International Human Rights Law at the Fletcher School. Sharon Nakandha (Twitter: @SherryKyama) is a Program Manager, Accountability and Justice with Open Society-Africa.]
At the establishment of the International Criminal Court, (ICC) 25 years ago, then Foreign Secretary of the United Kingdom, Robin Cook, famously said of it that it “is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.” On 17 March, 2023, ICC Prosecutor Karim A. A. Khan KC, himself from the United Kingdom, announced that the pre-trial chamber of the Court had authorized warrants for the arrest of Vladimir Putin, President of the Russian Federation and Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation.
President Putin is only the second sitting president against whom the Court has issued an arrest warrant and the first from outside Africa. The other before him was Sudan’s Omar Al-Bashir in 2009 whose surrender to the court has since failed. The ICC also unsuccessfully tried former Presidents Uhuru Kenyatta and Laurent Gbagbo of Kenya and Cote d’Ivoire respectively. It is widely speculated that the ICC investigation enabled Uhuru Kenyatta to be elected president of Kenya.
This Prosecutor has done what many thought nearly impossible— procure an arrest warrant against a powerful white man whose country is a permanent member of the equally powerful and unaccountable Security Council of the United Nations. For those in support, this arrest warrant goes a long way in addressing the widely held perception that the ICC is a barely disguised “court for the savages.” The Putin Arrest Warrant has received support from the United Kingdom, key EU member states and the US, whose President has commended the issuance of the two arrest warrants despite its own consistent refusal to sign and ratify the Rome Statue.
Three years ago, when his predecessor sought to open an investigation into Afghanistan, with potential exposure to service personnel of the United States, then US Secretary of State, Mike Pompeo, denounced ‘inappropriate and unjust attempts to investigate or prosecute Americans’ and thereafter the US issued an Executive Order targeting senior personnel of the ICC, including the prosecutor herself, Fatou Bensouda, from The Gambia with serious financial and travel sanctions. One of the first acts of Mr. Khan upon becoming Prosecutor in 2021 was to “deprioritize” the investigation into American forces crimes and instead focus on the crimes allegedly committed by the Taliban and the Islamic State in Khorasan Province , an act seen in many places as capitulation to US pressure.
Reprising the US playbook, Russia has now announced the opening of criminal investigations against the ICC Prosecutor and judges of the court’s pre-trial chamber who authorized the arrest warrant. The Russian President is also currently hosting a meeting with senior diplomats of more than 40 African countries at which he has announced a diplomatic pivot to Africa. The Putin Arrest Warrant has divided international opinion. Indeed, despite the support of President Biden, it has been reported that his own Defense Department has declined to co-operate with the ICC investigation and the US continues to maintain its “position that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty, like the United States and Russia.” The arrest warrant has predictably been greeted with a mixture of celebration and consternation and is an unprecedented test of the court’s credibility.
This situation is a reminder of why international criminal and human rights laws and institutions increasingly attract accusations of double standards and hypocrisy (see discussions here and here, and on the suspension of Russia from the UN Human Rights Council). Key to note is that countries such as Cameroon and Sudan still maintain membership of the Council despite crises of serious and massive violations and human rights atrocities being supervised by their governments. In Cameroon, the anglophone crisis involving the rights of the country’s English-speaking minority started in 2016 and has killed over 6,000 people. For many people who follow it, the silence of the international community is largely seen as owing to the fact that the country is led by long-time Western ally President Paul Biya, who has been in power since November 1982. For its part, Sudan has remained in turmoil since the 2019 popular uprising that ousted President Omar al-Bashir, a wanted ICC suspect. The Tigray conflict in Ethiopia, which began in November 2020, is reported to have led to the death of as many as 600,000 civilians, with many more endangered by starvation and yet receives very little attention from the international community.
By contrast, the crisis in Ukraine been a model of collective efficiency, resilience and solidarity by international institutions for the protection refugees, human rights, and international criminal accountability, including the ICC, with suggestions of hierarchies of humanity that should trouble everyone. The Putin Arrest Warrant alone is a reminder that the ICC has the capacity to open and conclude investigations in record time no matter the politics surrounding them.
Only a day after Russia’s announcement of its Ukraine invasion, the ICC Prosecutor issued a statement on the situation in Ukraine noting his concern on the recent developments in the country and urging “all parties to the conflict to respect their obligations under international humanitarian law”. This was an unprecedented step by the Prosecutor. In other situations where civil society and victims have advocated for the ICC prosecutor to exercise preventative complementarity or issues statements of this kind particularly in desperate contexts of extreme atrocity (including by states parties to the ICC Statute), the court has not been as forthcoming. This is likely because of the ICC’s interest in maintaining strong and cooperative relationships with such states and their influential supporters.
With Russia not being party to the Rome Statute of the ICC, the Court presumably does not crave its co-operation. The reality is that given Russia’s strategic capabilities, the likelihood is low that the court will receive co-operation from many states in arresting its President. The more likely calculus is that the Putin Arrest Warrant is an instrument for the diplomatic isolation of President Putin. Some may view this as weaponizing the ICC procedure and it could be open to dispute whether this is the most effective use of the instrumentality of the ICC procedure.
At least three consequences of the work of the ICC Prosecutor in this matter of the Putin Arrest Warrant are worth highlighting. First, the speed and efficiency of the ICC Prosecutor in the Ukraine situation now sets a standard for other situations. A few days after issuing the statement on Ukraine, the ICC Prosecutor announced his decision to seek the Pre-trial chamber’s authorization to open an investigation into the Ukraine situation citing the review of the Office’s conclusions arising from the preliminary examination of the Situation in Ukraine. In December 2020 when then Prosecutor Fatou Bensouda announced the conclusion of the preliminary investigation in Nigeria which started in 2010, by contrast, the expected next step in the judicial process was that the OTP would request authorization from the Pre-Trial Chamber to open an investigation into the situation in Nigeria. To date, no such step has been taken to make this request. Could the reason for this be the dedicated time and focus on victims in Ukraine? The long wait for justice for victims in Nigeria continues.
Second, in the absence of consistency, the credibility of prosecutorial decisions by the ICC will now be assessed with reference to this case. The 2020 preliminary examinations report highlighted the completion of the ICC investigation into the situation in Ukraine having only commenced on April 25, 2014. In the same report, while the office concluded that the criteria for proceeding with an investigation were met with respect to subject-matter, admissibility and the interests of justice, there was no clear commitment on when such an investigation would commence in light of the “the operational capacity of the Office to roll out new investigations, the fact that several preliminary examinations have reached or are approaching the same stage, as well as operational challenges brought on by the COVID-19 pandemic”. The office committed to “consult with the incoming new Prosecutor, once elected, on the strategic and operational issues related to the prioritization of the Office’s workload and the filing of necessary applications before the Pre-Trial Chamber.” Within a few days of the start of the Russia-Ukraine crisis, the notable delay factors highlighted in 2020 did not feature likely because the conflict was one of interest for key powers. The ICC independent experts review report has highlighted the frustrations surrounding the long duration of many preliminary examinations, noting the impact those delays have on victims and witnesses and the deterioration of evidence, among others.
Third, one cannot help but notice the significant financial and logistical support that member states have contributed to facilitate this Ukraine investigation leading to this arrest warrant. Countries such as Lithuania, United Kingdom, Canada, and France have sent the ICC additional funds and/or their own legal skills to support the probe in Ukraine. Following the onset of the Russia-Ukraine conflict, the US Congress also allowed for possible financial and in-kind contributions to the ICC and its Trust Fund for Victims. International Criminal Law scholars have called the Western funding move impressive while also rightly asking questions about whether such support for accountability will be offered to victims of mass atrocities outside of Europe. Meanwhile, investigation delays attributed to the ICC’s limited budget continue in other contexts. Indeed, in a statement in March 2022 following receipt of the Ukraine referral from 39 ICC member states following the Ukraine referral, the prosecutor undertook to seek the partnership and contributions of all States in order to address the OTP’s need for additional resources across all situations addressed by the Office. The likelihood of other situations triggering the interest of the moneyed states remains unclear. In addition, the management of the Ukraine situation also introduces a new dimension to the work for the ICC effectively entailing that the work of the prosecutor can be purchased on a cash-and-carry basis: those who want effective investigations can simply pay for or buy them. The implications of this for perceptions of independence and impartiality of the court will become evident in the fullness of time.
Ukraine offers the reality check that when and how international law and its institutions respond to emerging global crises will for the most part depend on whose interests are served at a given time. The corollary is troubling: that when the court dithers on any particular case, it does so because the people or country affected are lesser humans.