The Platform

Photo illustration by John Lyman

While it’s highly unlikely Vladimir Putin or Maria Lvova-Belova will ever see a courtroom, the symbolism of charging them for war crimes is historic.

Russia’s brutal invasion of Ukraine began in February 2022 and in that time, the evidence of war crimes committed by Russian forces keeps piling up. Because of overwhelming evidence of war crimes including the abduction of Ukrainian children and their forced relocation to Russia, the International Criminal Court has issued an arrest warrant for Russian President Vladimir Putin and Children’s Rights Commissioner Maria Lvova-Belova. Both Vladimir Putin and Maria Lvova-Belova are wanted for the war crimes of the “unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.”

Piotr Hofmański, the president of the ICC, said the following after the arrest warrants were issued: “The International Criminal Court has issued two warrants of arrest in the Ukraine situation for Vladimir Putin, president of the Russian Federation, and for Maria Lvova-Belova…for the alleged war crimes of deportation of children from Ukrainian occupied territories into the Russia Federation. It is forbidden by international law for occupied powers to transfer civilians from the territory they live into other territories. Children enjoy special protection under the Geneva Convention.”

Under the Rome Statute, which is the treaty that established the International Criminal Court, Karim Asad Ahmad Khan KC, the prosecutor of the International Criminal Court, is elected to a single term of 9 years. The prosecutor is accountable to the Assembly of States Parties which include countries that have ratified the Rome Statute. The Rome Statute bestows power upon the prosecutor to initiate an investigation under Article 15 known as the proprio motu power which means by its own initiation subject to the approval of the Pre Trial-Chamber, other such mechanisms include the Security Council referral under Article 13 which was vetoed by Russia and state party referral under Article 14 that was exercised last year when the invasion of Ukraine began.

It should be stressed that while 123 states have ratified or acceded to the Rome Statute, Russia, the United States, China, and a smattering of other states are not party to the statute. For Putin or Maria Lvova-Belova to face justice in The Hague, one or both would need to set foot in a participating country for them to be extradited. Given Putin’s general sense of paranoia that is unlikely to happen any time soon.

In simple terms, the factors considered before initiating an investigation include whether the crime committed is within the jurisdiction of the ICC, whether the case being initiated would be declared admissible under Article 17 of the Rome Statute i.e., whether it is of sufficient gravity to initiate an investigation as well the interests of the victims involved.

Historically, similar incidents have occured when the head of a non-member state was prosecuted. The ICC prosecutor opened an investigation into the situation in Darfur in 2005. On July 14, 2008, the ICC prosecutor sought the issuance of an arrest warrant for Omar al-Bashir on alleged crimes of genocide, crimes against humanity, and war crimes in the Darfur region. After eight months of consideration, in March of 2009, the ICC held that it was satisfied that there were “reasonable grounds to believe” that Bashir was criminally responsible under article 25(3)(a) of the Rome Statute as an indirect perpetrator, or as an indirect co-perpetrator, for war crimes and crimes against humanity.

Other such prosecutions in the past include the indictment of Serbia’s Slobodan Milošević by the International Criminal Tribunal for the Former Yugoslavia and also the indictment of Charles Taylor by the Special Court for Sierra Leone.

Going forward, as Russia’s invasion of Ukraine is threatening global peace and security, the allegation of unlawful deportation of Ukrainian children needs to be seriously investigated as the issue involves children whose best interests need to be ensured under the UN Convention on the Rights of the Children. At the same time, the United Nations Security Council and other multilateral institutions need to be democratized to accommodate the differing views considering contemporary geopolitical realities. Inclusive collective security institutions are the need of the hour, and they should be accountable to the international legal framework for inclusive global governance.

Abhinav Mehrotra is Assistant Professor at O.P. Jindal Global University and holds an LL.M. in International Human Rights Law from the University of Leeds. His research interests include International law, Human rights law, UN studies, Refugee law, Child Rights, and Transitional Justice.

Dr. Biswanath Gupta is an Associate Professor of Law at OP Jindal Global University.