KOVIDA BHARADWAJ
FIRST YEAR STUDENT OF LAW, NATIONAL LAW UNIVERSITY, JODHPUR
An arrest warrant by the International Criminal Court [“ICC”] against Russian President Vladimir Putin is ostensibly a very imperative news amidst the many shocking events that have taken place over the course of the past year. It is certainly true that serious war crimes were being committed, when all the layman could understand about the Russo-Ukraine war was that it was an unfortunate event that seemed never ending like many previous ones in global history, recognized as having completed a ‘one year anniversary’ on 24th February, 2023.
What constitutes a War Crime, and how is it dealt with by the International Community?
War crimes are defined in Article 8 of the Rome Statute of the International Criminal Court, as “Great breaches of the Geneva Conventions of 12 August 1949.” essentially stressing on protection of persons or property protected under the provisions of the same. Articles 33 and 49 of the Fourth Geneva Conventions prohibit collective “punishment or deportation” of civilian population in times of war. Russian President Vladimir Putin and Presidential Commissioner for Children’s Rights Maria Lvova – Belova have both been issued an arrest warrant for committing the offences of Unlawful deportation of population (children) and that of Unlawful transfer of population (children) from occupied areas of Ukraine to Russia since February 24th, 2022.
War crimes are usually dealt with by the United Nations and other organizations with global credibility: A definite amount of social cynicism. However, a practical implication of the same cannot be asserted to the same degree. The ICC has till date had fifty-one defendants indicted for committing war crimes, and seven of them have completed their sentences as well. However, none of them are powerful leaders like Mr. Putin, and certainly not sitting heads of state from one of the P5 countries in the UN. Some of the defendants who were tried also passed away before their trials could even be completed. Rest assured, like most International Law provisions, those to regulate International Humanitarian Law [“IHL”] also largely remain theoretically enforceable only. This has been the case since history, and perhaps that was the way it was intended, because International Law can merely have a suggestive nature, and cannot override national sovereignty. Legal action cannot be taken by Ukrainian courts either, because of the principle of Head-of-State Immunity, wherein, apart from prosecution in their own country, Heads of State may only be prosecuted in an International Court, which again comes with its limitations.
From where does Litigation derive legitimacy in International Law and how effective is it in reality?
Coming to the question of litigation in the international sphere, if one were to simply put it, there are two ways to approach with action against a country or a Head of State. In case of the former, the country may be tried by the International Court of Justice [“ICJ”] as here, Allegations of Genocide under the Convention on the Prevention and Punishment of the crime of Genocide (Ukraine v. Russian Federation) is the case brought in the ICJ on 26 March 2022 against the Russian invasion of Ukraine. The latter lies under the jurisdiction of the International Criminal Court [“ICC”], as in this case Mr. Putin and Ms. Maria have both been tried as individuals for their role in furthering gross violations of IHL.
Mainly, it is the Peremptory Norms of General International Law which are effectively most enforceable, because International Law explicitly disallows any treaty or convention to function in contravention to these norms as per Article 53 of the Vienna Convention on the Law of Treaties. They are based on the ideals of Natural Justice, such as prohibition against genocide, human trafficking, etc.
Most of all, it is perhaps the UN Charter that enjoys most legitimacy. Russia’s invasion of Ukraine was also quoted as a “Violation of its territorial integrity and of the Charter of the United Nations” by the UN Secretary General Antonio Guterres in his briefing to the UN Security Council on the Ukraine crisis in April 2022. This violation would essentially refer to that of Article 2(4) of the UN Charter which provides that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”
When it comes to the applicability of these efforts under International Law, it is not surprising that there exist robust ways to circumvent the law and find ways to twist matters and change narratives. This is indeed the present case, where the Russian Investigative Committee [“RIC”] has opened a criminal case against the Prosecutor of the International Criminal Court, Karim Ahmad Khan and several ICC judges, based on their allegedly ‘unlawful decision’ to seek Mr. Putin’s arrest. Mr. Khan will now be investigated on the grounds of “criminal prosecution of a person known to be innocent and preparation of attack on a representative of a foreign state enjoying international protection.” This statement from the RIC is not a surprise, because the plausibility of this approach by Russia was indicated by its constant numb reactions to any legal action taken by International Courts ever since the conflict began, the same is also depicted by the nonchalance in the statements made by the Russian government which went on to dismiss the warrant as ‘null and void’.
It is instances like these which make ordinary citizens look at International Law redressal mechanisms with an eye of suspicion. Why have a legal recourse in the first place when we know that it will never be followed? This can be answered by the fact that after the developments that have taken place till now in totality, Mr. Putin can certainly continue to delay the process of law as far as possible, but he cannot mute the narratives and worldview surrounding his actions. It is also very plausible to raise the question of how it even matters if his image is tarnished. He still remains one of the most powerful people in the world with a huge section of brainwashed population still having his back. However, the essence of practical effectiveness per se of International Legal Action is not in its legality of laws that a state or individual is subject to. It is rather the impact of the creation of a new global image of the state or person.
How does ICC’s arrest warrant for Mr. Putin actually impact Mr. Putin and Russia and how is it different from previous attempts of legal and political action by the International Community?
Muscovites were interviewed by a media channel in Russia to document their response to the arrest warrant. Anton Gerashchenko, an advisor to Ukraine’s minister of internal affairs tweeted regarding the same as an explicit example of how brainwashed the Putin-favoring Russian public is.
This is also reflected by the fact that former Russian President Dmitry Medvedev openly issued the following statement: “It’s quite possible to imagine a hypersonic missile being fired from the North Sea from a Russian ship at the Hague courthouse.. Everyone walks under God and rockets…look carefully to the sky..” This is rather a matter of concern for the ICC, which does not even have its own police force and relies on member states for security; the last time the Russian leadership made an aggressive claim, the same quite literally translated into a full blown war that still continues. This nonchalance can also be seen in the RIC terming the Arrest Warrant as a violation of Article 1(a) of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, using the principle of Head- of-State-immunity. For now, what is evident is that it is not just legal equivocation that will help Putin in his cause to evade his arrest, but rather use of brute force, which can further be defended by twisting International Law principles yet again: when Russia initially invaded Ukraine, it claimed to do so because Ukrainians of Russian ethnicity were allegedly subject to genocide, and Russian occupation was a mere noble effort to restore the people’s Right to Self Determination.
The arrest warrant will also be evaded by Russia on the grounds that it is not party to the Rome Statute of the ICC. However, it is a known fact that 43 states referred the case to issue the warrant, which formally triggers the ICC’s jurisdiction, and in any case, Ukraine has accepted the ICC twice in 2014 and 2015. The court holds jurisdiction over crimes committed on anyone in the territory of Ukraine from November 2013 onwards regardless of the nationality of the alleged perpetrators.
Another popular justification used by Russia is to allege American involvement when the US leadership advances the decisions of International Authorities such as the ICC in this case. However, even the US subtly acknowledged the fact that this was merely a ‘strong point’ made by the international community.
Fact remains that there is hardly any possibility of there being a trial following this warrant, because in order to be arrested, Putin will have to travel to one of the 123 countries that are members of the ICC. Moreover, this will make it a trial in absentia under International Law. A defendant’s right to be present during trial is fundamental to Due Process and is encapsulated in the International Covenant on Civil and Political Rights [“ICCPR”] which stipulates that for anyone accused of a criminal charge, “He is entitled to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing”. The General Comment No. 13 of the UN Human Rights Committee [“UNHRC”] states that “When exceptionally for justified reasons trials in absentia are held, strict observance of rights of the defense is all the more necessary.” International Law also provides a recourse to the same, as can be seen in the case of Mbenge v. Zaire[i], it was indicated that if the defendant voluntarily refuses to claim his right which interferes with proper administration of justice in that respect, proceedings in absentia may be justified.
However, in the present case, it seems unlikely that such a precedent will be followed. This may take the form of retaliation by way of brute force, as threatened by Putin and Russian Authorities. It is indeed a sad state of affairs to acquiesce to the fact that International legal boundations may mean nothing for Russian aggression at a legal level. However, at a political level, this certainly means a lot. Mr. Putin will now be accompanied by infamous figures like the former president of Yugoslavia Slobodan Milosevic, and former Sudanese dictator Omar al- Bashir for the rest of his life.
One can barely argue for there to be more robust International boundations. This is because the existing legal provisions for the same happen to be sufficient when it comes to statutes and conventions. It is an accepted fact that International law remains to be enforceable only as long as sovereign states agree to recognize its rulings, which is the way it was intended during its drafting as well.
After a year of developments one after the other, it is useful to address the question of how this development is different from previous instances of sanctions against Russia and other political boycotts. Sanctions may be categorized as targeted restrictive measures against individuals, economic sanctions and visa measures. The EU has since the annexation of Crimea in 2008, imposed sanctions on 1,473 individuals and 205 entities specifically in services, restrictions on oil trade, aviation and transport, financial restrictions- especially with the Society for Worldwide International Financial Telecom [“SWIFT”] coming into the picture, even media outlets responsible for spreading global Russian propaganda. This approach has been followed by several other powerful nations such as the United States, United Kingdom and Switzerland. What remains is tariffs on food- related trade. The US had also imposed sanctions on 208 members of the Russian parliament for enabling the referendums to annex four regions of Ukraine. Germany stopped plans for opening the Nord Stream 2 gas pipeline from Russia. However, Russia’s ability to fund the war has been helped by high oil and gas prices, leading to a rise in its crude oil revenues by 41 % through 2022, even though its access to military innovation remains crippled due to sanctions.
What is the way forward in combating the Russo-Ukraine War and what is India’s role in the same?
Perhaps the most problematic nuance of the impugned Russian aggression is the clear violation of Ukraine’s right to territorial sovereignty. What started with Moscow’s mere indication of a further effort to Russianize the regime in Donbass following the annexation of Crimea in 2018 has culminated into utter chaos with a Russian occupation of nearly 17% of Ukraine, Everything said and done, Russia remains to be a major aggressor, and even the UN’s Independent International Commission of Inquiry on Ukraine has documented evidences of Russian acts that appear to constitute war crimes, and several states via submitting documentation to the International Court of Justice have found Russia to be guilty of committing genocide in Ukraine.
Another burning question arises with regard to India’s role ever since this conflict started. As far as the arrest warrant is concerned, India stands under no legally binding obligation to extradite Mr. Putin who is set to visit New Delhi for the upcoming G20 summit even though the ICC may request a non- party to assist the court under Article 87(5). This is because India is not party to the Rome Statute signed in 2002 even though it stipulates adherence to the same in a non- binding manner.
In fact even when on 23 February 2023 the UNGA adopted a resolution calling for an end to the war, the resolution was favored by 141 members and opposed by 7, while 32 states abstained, of which India was one. This was not surprising, given that India has chosen the path of abstention ever since the conflict started. India didn’t participate in the race for sanctions, rather took to buying Russian oil at bargain prices, much to the chagrin of the West, coupled with Indian Prime Minister Narendra Modi’s description of India- Russia ties as ‘unbreakable’ in September 2022. Opposition leaders in India have also gone to describe India’s approach to the war as devoid of the slightest criticism, almost appearing to aid and abet the war. The main point of issue remains that much of India’s arsenal was and is Soviet-made. Moreover, updating the entire composition of Russian military equipment to it being an amalgamation of French, American and Israeli systems is a tedious task which comes with economic costs for India and can certainly not be a short run approach. India’s much strategically planned affinity to Russia also stems for its recognition of the need to counter Chinese aggression. As they say, India’s biggest foreign policy preoccupation is not Ukraine or Russia. It is China. Russia’s focus in any case is more towards Asia, since the West’s case for Russian boycott is evident ever since.
One may criticize the Indian position on grounds of morality. However, India’s role as a peace- loving country does not limit itself to world peace. Take for example, Britain or USA. Their vote against Russia is not for Ukraine it is in fact, for Britain and USA itself. Foreign policy can never supersede domestic interests, as that itself is violative of the idea of peace and morality in many aspects. In my opinion, there exists no gap in India’s diplomatic scheme. Rather the USA itself has conveyed the fact that it understands why India has not openly condemned Russia’s invasion of Ukraine. It is also a plausible approach keeping in mind the fact that India never favored the war either. It’s voting tendencies in the UN have never been in favor of Mr. Putin per se.
To put it in a nutshell, the realm of International Humanitarian Law can rarely provide global solutions to global problems. Rather, it is much similar to the idea of Law itself- Law is not justice, it is just a medium to reach it. Even though the International community may not manage to literally put Mr. Putin behind the bars, it will certainly have a deep impact on the course of East European politics which reverberates in some way or the other all across the world. What waits to be seen is whether Russia decides to end this war of attrition or not, and the further role of the de facto world government which includes the UN, ICC and other bodies in countering the same. The whole issue boils down to a quest for power, and the long lost Soviet dream to become the first among unequals. There may be no straight answer to this, but the gravity of questions raised will only keep increasing.
[i] U.N. Human Rights Comm., Mbenge v. Zaire, U.N. Doc. CCPR/C/OP/2 (Mar. 25, 1983).