The arrest warrant for Putin, as well as children's ombudsman Lvova-Belova, issued by the International Criminal Court in The Hague is a revolutionary decision of the International Criminal Court, which has direct consequences for both defendants, lawyers explained to The Insider. First, any of the 123 countries that have ratified the Rome Statute is required to arrest them if they arrive. Among them are almost all countries of Europe, all states of South America, Tajikistan, Afghanistan, Brazil, South Africa, the Central African Republic and Nigeria. Moreover, there are likely other warrants for the arrest of Russian politicians, but they are still secret.
First arrest warrants for crimes in Ukraine
This decision has big implications,” says Denis Krivosheev, Amnesty International’s Deputy Director for Eastern Europe and Central Asia. At the very least, this is an important precedent.
“Persons against whom there are reasonable suspicions of involvement in war crimes in Ukraine should know that they are expected in the dock, and even the highest position will not be able to hide. Putin is now on the arrest list. And the legal consequences of the ICC decision is that the Rome Statute countries are now obliged to refuse to grant him protection <immunity> and ensure his arrest within their jurisdiction, if he happens to be there, and transfer him to the hands of international criminal law.”
According to lawyer Karina Moskalenko, the ICC decision is revolutionary, but it should be remembered that Russia has not ratified the Rome Statute – although it was going to.
“Russia is not a member of the Rome Statute, which means that the jurisdiction of the ICC does not apply to it. Ukraine is also not a signatory to the Rome Statute, but it has recognized the jurisdiction of the ICC and has taken a number of consistent actions that allow the International Criminal Court to consider all questions about all crimes committed on the territory of Ukraine,” the lawyer explained.
Does Putin have presidential immunity from arrest?
In the overwhelming majority of cases, heads of state end up in the dock when they cease to be such, says lawyer Gleb Bogush. In general, the International Criminal Court proceeds from the fact that immunity does not apply in this case. There are reasons and precedents for this.
“This is not the first arrest warrant. There was a story with former Liberian President Charles Taylor who went to prison for 50 years and then a warrant was issued while Taylor was the acting head of state. You can just go to court. All the highest standards of justice are observed there, protection is guaranteed, the presumption of innocence is guaranteed. I would advise "Putin" to appear in court. This is a convenient option and there were such precedents. For example, the President of Kenya appeared when he was the acting head.”
The International Criminal Court proceeds from the fact that the state is obliged to comply with the arrest warrant in such a situation, but the states themselves take different positions in their practice, says Bogush. At the same time, Georgy Kunadze, a diplomat and ex-Deputy Foreign Minister of the Russian Federation, believes that diplomatic immunity will still help Putin avoid any real consequences from this warrant, and no one will issue it to The Hague.
“The head of state, during the period when he is in power, enjoys full diplomatic immunity. What happens when he leaves his position? I don't know. I believe that, like in most countries, the president of the country, who retired, has the right to a diplomatic passport and immunity. However, despite the fact that I do not suggest any practical consequences here, this is a serious blow to the reputation of both the state and the officials who have come under suspicion.
I don't think anyone will give it away. There was one case when Serbian President Milosevic was handed over to The Hague, but the Serbs themselves did it, and not someone else. The fact that Russia itself in some indefinite future will decide to transfer suspects to The Hague is more of a fantasy. I would not be talking so much about some direct threat to Mr. Putin to end up in a pre-trial detention cell, but about damage to the country's reputation. Although, in my opinion, the country doesn’t care anymore.”
“This is damage to the country's reputation. Although, in my opinion, the country doesn’t care anymore.”
Overcoming immunities is still a difficult issue, there are few examples of such processes, lawyer Karina Moskalenko says, just like Kunadze, citing the Milosevic case as an example. At the same time, Moskalenko believes that states that have ratified the statute will still go to arrest Putin if they have the opportunity.
“How can the immunity of the first person of the state be overcome? I would cite only one such case – the case of Milosevic. He was also the first person of the state, and then it was not the ICC that considered the case, but the international military tribunal for Yugoslavia. The crimes that were imputed to him were of the nature of those that, from the point of view of international law, can be considered grounds for depriving him of immunity.
Here the rules are the same. This is not a prosecutor, not prosecutors, but a judicial body. This is very serious, since the judiciary made such a decision. This will have to be taken into account. If this is the first person whose immunity has been overcome, in whose case the ICC has accepted proceedings, and if this person is stopped and arrested somewhere, then in this case the person can be detained and sent to The Hague. And most countries still respect the norms of international law.”
Why is the warrant specifically for the "relocation" of children?
According to lawyers, apparently, it was on the abduction of children that the prosecutor's office managed to collect enough evidence. Moreover, the Russian authorities openly and not embarrassedly speak about it publicly, and kidnapped and “reformed” children from Mariupol are taken to the stage in Luzhniki.
“This is not about deportation, but about the kidnapping of children,” Kunadze says. – For this, responsibility comparable to the severity of the crime is laid. I think that the main suspect is the so-called main defender of children's rights <authorized Maria Lvova-Belova>. Apparently, the registration of these minor citizens of another state, who were transported to Russia, passed through it.
“It was Putin who made all these decisions, and it is he who is responsible for what happens to Ukrainian children,” says Ivan Pavlov, a lawyer for the First Department. “There is no doubt that he was aware, gave all the necessary consents and certainly signed the documents so that the deportation decisions were executed.”
Could there be secret arrest warrants for other Russian politicians?
Yes, and most likely it is, says Bogush. The ICC itself indirectly hints at this in its release, noting that initially the warrants for the arrest of Putin and Lvova-Belova were secret, but the court decided to declassify the first two. Judging by the release, information about new orders will soon be disclosed.
"The Chamber has determined that the warrants are classified for the protection of victims and witnesses and to ensure the security of the investigation," the release said. — However, bearing in mind that the conduct at issue in the present situation is expected to continue and that informing the public of warrants may help prevent further crime, the Chamber considered that it is in the interests of justice to authorize the secretariat to publicly disclose the existence of warrants, the names of suspects , crimes for which warrants have been issued, and the manner of liability determined by the chamber."
Should we wait for Putin's trial?
As long as the regime is in Putin's hands, this decision is most likely unfeasible, says First Division lawyer Ivan Pavlov.
“It is naive to hope that the authorities in Russia will extradite Putin, but it is clear that he has long been banned from traveling abroad and it is impossible to leave, because such a decision can take place at any moment and this decision can catch him on a trip. And then those states that signed the Rome Statute will be obliged, despite immunity, to arrest Putin and bring him to trial, that is, send him to The Hague, where he is guaranteed a path. Yes, it is now impossible to implement this decision, but it is a long game, and this decision can be eventually executed.”
“Let's hope that everything will end in justice, but no one can give guarantees,” says Bogush. – There are positive and negative examples when justice did not take place. In this case, the court works and focuses not on our desires, but on the documents and decisions of the prosecutor. We will monitor this situation."