New Delhi: Two days after announcing that Russian President Vladimir Putin will not be arrested if he attends the G20 Summit in Rio de Janeiro next year, Brazil President Luiz Inácio Lula da Silva appeared to be backtracking on his assurances.
“We will invite them. We hope they will participate,” da Silva said at a press conference, while adding that it would be up to the judiciary to decide whether to arrest the Russian leader.
The Brazilian president made the earlier statement while being interviewed by Firstpost on the sidelines of the G20 meeting in New Delhi. “I believe that Putin can go easily to Brazil,” da Silva had said. “What I can say to you is that if I’m president of Brazil, and he comes to Brazil, there’s no way he will be arrested.”
The comment was made in reference to the fact that in March, the International Criminal Court (ICC) issued an arrest warrant against Putin for the alleged war crimes of unlawful deportation of population and unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children. An arrest warrant was also issued against Russia’s Commissioner for Child Rights, Maria Lvova-Belova.
Brazil is a signatory to the Rome Statute, which established the ICC. Putin, as well as Chinese President Xi Jinping, skipped the two-day event in New Delhi. Putin has continued to skip several international gatherings since the warrant, including the BRICS summit in South Africa last month.
According to reports, this is the first time that the ICC has issued an arrest warrant against one of the five permanent members of the UN Security Council. According to the ICC’s website, it does not try individuals in their absence, and therefore, several cases remain stuck at the pre-trial stage, pending the suspect’s arrest or voluntary appearance before the court.
However, the New York Times quoted experts as saying that the warrant itself would lead to reputational costs for Putin, material consequences in the form of travel restrictions, and deterrence for other state actors involved. In addition, the Rome Statute also requires State Parties to cooperate in its investigation and prosecution of crimes.
Russia reportedly has dismissed the warrants, pointing out that it does not recognise ICC’s jurisdiction.
What do the warrants against Putin say? How does the International Criminal Court work and how do they enforce the warrants? ThePrint explains.
Why were warrants issued
In a press release issued in March, the ICC alleged that the Putin and Lvova-Belova were allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation — under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute.
It said that the crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022.
The warrants were issued by the Pre-Trial Chamber II of the ICC, which considered that “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, in prejudice of Ukrainian children,” the release said.
It added that, while the warrants are secret in order to protect victims and witnesses and also to safeguard the investigation, the Chamber authorised the ICC registry to publicly disclose the existence of the warrants, “mindful that the conduct addressed in the present situation is allegedly ongoing, and that the public awareness of the warrants may contribute to the prevention of the further commission of crimes”.
How the ICC works
The court was founded by a treaty called the Rome Statute in 1998, and is headquartered in The Hague, The Netherlands.
The statute establishes the court, saying that it “shall have permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions”.
The Rome Statute grants the ICC jurisdiction over four main crimes — genocide, crimes against humanity, crime of aggression, and war crimes, which are grave breaches of the Geneva conventions.
These include breaches of the Geneva conventions in the context of armed conflict, which include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.
Currently, 123 countries are States Parties to the Rome Statute of the International Criminal Court. While Russia was a signatory, it withdrew in 2016.
Ukraine is not a State Party to the Rome Statute, but it has twice accepted the ICC’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory.
This is pursuant to Article 12(3) of the Rome Statute, which allows a state, which is not a party to the statute, to accept the exercise of the court’s jurisdiction by a declaration lodged with the Registrar, with respect to a crime in question.
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How are warrants enforced
Generally, under Article 86 of the statute, states are required to “cooperate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the court”.
Article 19 of the Rome Statute allows the prosecutor to seek authority from the court to prevent the absconding of persons in respect of whom the prosecutor has already requested a warrant of arrest, in cooperation with the relevant states, while the court’s ruling remains pending.
Where a warrant of arrest has been issued, the Pre-Trial Chamber may seek the cooperation of states “to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims”.
This can be done pursuant to Article 93 of the statute, which says that State Parties shall comply with requests by the court to provide certain assistance to it in relation to investigations or prosecutions. This includes assistance in the identification and whereabouts of persons or the location of items, or questioning of any person being investigated or prosecuted.
Article 59 of the statute says that a State Party, which has received a request for provisional arrest or for arrest and surrender, shall immediately take steps to arrest the person in question.
All of these provisions mean that, while member states have to cooperate with ICC, the court largely has to rely on other governments to act on its mandate, instead of actually having the powers to arrest sitting heads of state. It does not have any police force or independent enforcement powers.
How the investigation began
In February last year, days after Russia launched a large-scale invasion of Ukraine, the ICC prosecutor had announced that he had decided to proceed with opening an investigation into the situation in Ukraine.
In March last year, ICC prosecutor Karim A.A. Khan QC confirmed that his office had received referrals of the situation in Ukraine from 39 ICC States.
These referrals enabled the office to “proceed with opening an investigation into the situation in Ukraine from 21 November 2013 onwards, thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person,” he added.
In the declaration, Khan had repeated his call “to all those engaged in hostilities in Ukraine to adhere strictly to the applicable rules of international humanitarian law”.
In March this year, the ICC Pre-Trial Chamber II issued Warrants of Arrest against Putin. Article 58 of the Rome Statute allows the Pre-Trial Chamber to issue a warrant of arrest of a person, at any time after the initiation of an investigation, on the application of the prosecutor.
It can do so if it has reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court, and that the arrest of the person appears necessary.
This could be to ensure the person’s appearance at trial, or to ensure that the person does not obstruct or endanger the investigation or the court proceedings, or to prevent the person from continuing with the commission of that crime or a related crime, states Article 58 of the Rome Statute.
The ICC release pertaining to the warrant against Putin also said that they were issued pursuant to the applications submitted by the prosecution on 22 February 2023.
The office of the prosecutor has established a dedicated portal through which any person who may have information relevant to the Ukraine situation can contact ICC investigators.
(Edited by Richa Mishra)
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