‘It never goes away’

International courts expert Victor Peskin on the significance of the ICC’s war crimes warrant for Putin

On March 17, 2023, the International Criminal Court in The Hague (ICC) issued arrest warrants against Russian President Vladimir Putin and Russian Children's Rights Commissioner Maria Lvova-Belova for their alleged complicity in the illegal deportations of children from Ukraine’s occupied territories to Russia. This makes Putin the third world leader in history to be indicted by the ICC while in office. Meduza spoke to Victor Peskin, a legal scholar specializing in international courts and an associate professor at Arizona State University’s School of Politics and Global Studies, about the workings of the ICC, the odds of the warrant against Putin leading to a conviction, and why not all countries have signed on to the court’s founding charter.

This interview has been edited for length and clarity.

How did humanity come up with the idea of the International Criminal Court?

The main predecessors were the Nuremberg and Tokyo Allied-run military tribunals. In the aftermath of World War II, these tribunals established the important idea that there are some crimes that are so terrible that they really warrant international prosecution.

With the Cold War and the rivalry between the United States and the Soviet Union, any potential for cooperation to build such an international institution essentially disappeared in the late 1940s. In the early 1950s, there was actually a proposal to establish a standing international war crimes court, but it didn’t get the support it needed, and so this idea of a permanent global international court pretty much disappeared until the very end of the Cold War.

Then, in the years after the USSR’s collapse, we had a lot of multilateral cooperation, especially between the United States and Russia. That was a key factor to open the way not for the ICC but for the ad hoc United Nations International Criminal Tribunals.

The first key historical development in contemporary times happened during the war in Bosnia, when the U.N. Security Council voted to establish the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). It essentially followed the model of Nuremberg — the notion that we, humanity, could come together and build an international legal institution to address terrible atrocities and war crimes.

The Yugoslavia tribunal in the Hague was temporary and regional in scope. Nonetheless, its creation really sparked the imagination of many human rights activists, legal scholars, victims, and people everywhere that we might be able to, if not stop atrocities, at least seek accountability for them.

And then in 1994, the U.N. Security Council voted to create a very similar tribunal for Rwanda, the International Criminal Tribunal for Rwanda (ICTR). Then, a few years after that, activists, NGOs, and some governments started to have the idea that instead of creating a temporary tribunal for each conflict, we could reignite the idea from the aftermath of World War II, from the early 1950s, of a permanent standing international criminal court. And so there were a lot of conferences and meetings in the mid- and late 1990s, and it culminated in the Rome Conference in the summer of 1998, where many states came together to negotiate the constitution of the court.

So the collapse of the USSR facilitated the creation of the tribunals in the 1990s?

It’s absolutely the case that the end of the Cold War, the fall of the Soviet Union, and the spirit of cooperation between the newly emerging Russian government of Boris Yeltsin and the U.S. administrations created the groundwork. In the 1980s, it would have been very difficult because of the rivalry of the two superpowers. The U.S. would have been against any tribunal that might implicate its allies, and vice versa for the Soviet Union. So that would have made it a very hard proposition to have an international tribunal in the 1980s.

Where does the ICC derive its authority from? Who gave it the right to issue arrest warrants against people in sovereign countries?

The legitimacy and the authority of the U.N. Yugoslavia and Rwanda tribunals comes from the U.N. Security Council: Chapter VII of the U.N. Charter gives the Security Council the power to take action to protect peace and security.

But the ICC is different. It’s not a U.N. institution, and it was created through a multilateral treaty at the Rome Conference of 1998, where states could join the court or decide not to join the court. Russia, the United States, China and a lot of other countries decided not to join the court, but many countries did. Currently, we have 123 countries that are state parties, or members, of the court. The court gets its legitimacy from its members: the more members it has, the more legitimacy it has. So the ICC and supporters of the ICC are trying to build a movement that they hope all the countries on the planet will one day be members of.

But it also derives authority from the applicable laws. The categories of law it applies — war crimes, crimes against humanity, and genocide — come from the legal precedents established throughout the 20th century and the other tribunals.

What is the Rome Statute?

The Rome Statute is the international treaty that founded the ICC. The statute itself is a very long document with 128 articles, which is, in a way, like the constitution of the court. It establishes its jurisdiction, its authority, the crimes it can prosecute, the obligations on states, and a lot of other aspects.

When the U.N. Security Council established the Yugoslavia and Rwanda tribunals, in its statute, it said that all U.N. member states have a binding legal obligation to fully and immediately cooperate in all the requests of the tribunal. So if Slobodan Milošević went to Ecuador, hypothetically, 10 or 15 years ago, Ecuador, as a U.N. member state, would legally have to arrest him. In contrast, the ICC has exceptions for states that are not members. So people charged by the ICC can freely travel to states that don’t recognize its jurisdiction.

Is it possible for countries to adhere to the Rome Statute but not recognize the jurisdiction of the ICC?

Yes. A state can be a signatory but not a member. For example, Russia, the U.S., and Israel are signatories but not members. (“Member” and “state party” mean the same thing). A signatory is not a member; it’s not obligated to cooperate. But it’s indicating that one day it might wish to become a member. It leaves open the possibility.

How does the ICC guarantee its independence?

The tribunals that preceded the ICC gained their legal authority from the multilateral treaty, but they gained their legitimacy, their credibility, from being independent.

The ICC is run by highly professional legal experts who are dedicated to the idea of the rule of law, and the rule of law is inherently about being independent from political forces. Nevertheless, many of its cases are conducted in highly political contexts, where certain states seek to put a lot of political pressure on the court, and especially on the chief prosecutor, because the chief prosecutor is the one who decides what cases to investigate, whom to indict, when to indict, and for what. The issues facing chief prosecutors include not only remaining independent but also convincing people that they’re independent.

This goes back to the indictment of the former president of Sudan. One of the big controversies is that in its early years, the ICC only issued arrest warrants for suspects from Africa. And because of this, and because a number of African leaders who were afraid of being indicted started to accuse the ICC of being neocolonial and anti-African, it became increasingly difficult for the chief prosecutors to say, “No, there are some good reasons why they were focusing on Africa: some of the conflicts were very bad, some of the legal systems were very weak.”

But as time went on, there was more and more criticism for the ICC regarding why it wasn’t opening cases in Afghanistan, or elsewhere in Asia. And the last chief prosecutor, Fatou Bensouda, started to open other investigations, such as the ones in Myanmar, the Philippines, and Georgia.

Additionally, Bensouda sought to open an investigation of alleged crimes in Afghanistan, and wanted to focus on three groups: the Taliban, Afghanistan’s army, and alleged crimes by U.S. individuals in Afghanistan. That was very controversial in the U.S., and the Trump administration placed sanctions on the chief prosecutor herself, and on another top ICC official, as if these two officials were bad actors.

And then when Biden came in, he conducted a review and withdrew the sanctions. But nevertheless, the current chief prosecutor, Kareem Khan, for the time being, has decided not to prioritize the allegations focusing on U.S. individuals. So that has sparked criticism that the prosecutor may not be independent because the ICC faced a lot of American pressure.

In your opinion, is the ICC independent?

They rely on states for funding and logistical support, protecting witnesses, and arresting suspects, so in that sense, they’re very dependent. At times, they do succumb to political pressure. It will be important for the ICC, to maintain its global legitimacy, to return to the Afghanistan situation and conduct the kind of comprehensive investigation that the previous chief prosecutor set out to do. Independence is something you can regain. It’s a continuous struggle.

Do political actors try to lobby the ICC?

I think that states, particularly states that have a lot at stake with particular investigations and indictments, are often involved in trying to lobby the ICC. One way of doing this is to try to undermine the court’s credibility. The ICC gains legitimacy from how many states join it, but also from its independence, its legal procedures, and its claim that it’s a legal body, not a political one. And its rules are largely followed. I believe that in those key ways, the way that they conduct their work is largely independent.

States that are under indictment lobby in a certain way, or their friends do. In the coming weeks, we’ll see how the Kremlin lobbies. What Milošević would say a lot, in his appearance in The Hague, was that this is a Western-led tribunal, a NATO tribunal, not a court of law. That played very well among nationalists in Serbia. But in many parts of the world, it didn’t work, because many people knew of all the terrible crimes he was responsible for.

But when former Sudanese president Omar al-Bashir was indicted, when Uhuru Kenyatta was indicted, when he became president of Kenya, they both started to use the argument that this is a political institution; certain leaders say that it’s an anti-African institution. In Milošević’s case, he said it was an anti-Serbian institution. In Putin’s case, he will likely say that it’s a Western court. That’s why it’s important for the ICC to really maintain its credibility. And if there are other states from other parts of the world that are implicated in crimes, those investigations should also be pursued.

Why doesn’t the U.S. recognize the ICC’s jurisdiction? Why isn’t the U.S. a member state?

The U.S. has very mixed feelings. It’s very ambivalent about the ICC. Originally, in the mid-1990s, U.S. officials spoke favorably about the idea of creating a permanent international court. And there were officials in the U.S. government at the time who wanted to join an international court. But the question really became, what would the statute look like? How would the court be structured? Where would the power lie, and how much independence would the chief prosecutor have?

The Rome Statute gives the chief prosecutor a lot of independence. There are structural guarantees. That doesn’t mean that it will happen in reality, but the U.S. favored limiting the independence of the chief prosecutor, and one of the key issues is that the U.S., and also some other powerful states, wanted the U.N. security council to be the filter of what conflicts could be investigated. Because at the U.N. Security Council, the permanent five have a veto. So the U.S. wanted more control to be in the hands of the U.S. and other states.

A lot of justice activists in other places wanted there to be more discretion for the chief prosecutor to decide when and where to open investigations. Some powerful states were very uneasy about giving the prosecutor too much power, because of the concern that allies of the U.S. could be investigated, and that one day American individuals or leaders could be investigated as well.

Russia and China also had similar concerns, but the U.S. was particularly vocal. So ultimately, at the Rome Conference, the U.S. delegation voted against it. And the U.S. also objects to the issue about how the chief prosecutor is allowed to investigate individuals from non-member states if they allegedly carried out a crime on the territory of a member state. This could apply, for example, to the actions of U.S. soldiers in Afghanistan.

Here’s a question often raised by Putin supporters: Why hasn’t the ICC issued orders for the arrests of American presidents like George W. Bush for their alleged war crimes?

An international tribunal’s decision not to indict a citizen or leader of one country or faction is not proof that the prosecutor is not independent. There are a lot of factors that can be in play. For one thing, there are limited resources.

The ICC is different from the tribunals that were focused on just one country. The ICC is focused on many countries, so its resources are limited, so it has to kind of do legal triage and determine how deep to go into one country, and then how far to go, and the prosecutor’s calculation often includes questions like, how good are our cases? Do we have a good chance of winning? How good are our witnesses?

So a decision not to prosecute somebody from the other side is not necessarily proof of the court’s partiality. And the chief prosecutor in the Afghanistan situation is not saying the office of the prosecutor will never continue its investigations of U.S. individuals; he’s saying that for a variety of reasons, he’s going to focus on other actors at this point in Afghanistan.

How does the ICC arrest warrant procedure work?

There are three parts of the judiciary of the ICC. The main one is the Trial Chamber. So if Putin is ever tried, he’ll be tried in the Trial Chamber. Then, if he’s convicted, he can appeal it with the Appeals Chamber.

But there’s also the Pre-Trial Chamber. The chief prosecutor submitted documents on February 22 to the Pre-Trial Chamber and said: “We have reason to believe that there’s enough evidence to support an indictment for each individual.” The Pre-Trial Chamber then, pretty quickly, between February 22 and March 17, said, “Yes, it looks like you have enough credible evidence,” and they issued a warrant. And the judges have to confirm the warrant. And then the prosecutor can ask for the warrant to be kept secret or to be made public.

There are different advantages and disadvantages to keeping it a secret. In this case, for instance, one of the advantages of keeping it secret would be that the leader wouldn’t know that he’s indicted, and if he goes to a country that is a state party to the Rome Statute, that state can arrest him. But if he knows that he’s indicted, he won’t go, although it sounds like Budapest would be happy to have him. But releasing a warrant publicly sends a message. If you keep it secret, you might increase your chances of arresting the suspect, but you’re not sending that signal that a warrant sends.

What will Putin’s warrant mean for Russia’s future?

When an international tribunal indicts a high-level official or president and says that it’s continuing to do investigations, it can make other high-level officials who are implicated in crimes nervous. They don’t know whether they might be next. Some of the tribunals have benefitted from the uncertainty by getting some of these insiders to testify against a general or a leader. Sometimes those insiders may not be directly implicated, but they may know about the crime, or they might also be implicated, and might be interested in offering their cooperation with the prosecutor in exchange for a deal.

So it will be interesting to see whether more indictments will be released in the coming weeks or months, and whether that might create internal discord within the Kremlin. On the other hand, these indictments can have a “rally around the leader” effect.

Why was this particular article concerning child deportations chosen for the warrant? It seems like there are more obvious grounds: the atrocities in Bucha, the shelling of infrastructure. Why children?

One possible reason is that it’s often difficult for international chief prosecutors and investigators to link a political leader who is far away in a capital like Moscow or Belgrade to crimes that are taking place in Bucha or Srebrenica, and it can also be challenging to link a general in the Kremlin to the crimes. Oftentimes, it’s easier to implicate a footsoldier in a crime like what took place in Bucha.

But the policy regarding children from Ukraine is a policy that has been announced, it’s not a hidden policy, so in that sense, it seems that it would have been easier to more quickly link Putin to these crimes than it would be to link him to Bucha. But I don’t know what evidence the office of the prosecutor might have for Putin’s alleged links.

The second person with Putin in the ICC proclamation is Russian Children’s Rights Commissioner Maria Lvova-Belova. Why her, rather than generals or Defense Ministry officials?

Sometimes it can build your case to have co-indictees. The more indictees you have, the more complicated things can get, but also it increases your chance of getting a conviction.

Is it true that Putin is now banned from entering countries that recognize the jurisdiction of the ICC?

Here’s the problem. Hungary’s statement the other day kind of puts a crack into it. States that are members of the ICC are obligated to arrest and hand over individuals who are subject to ICC arrest warrants. So if Putin lands in France, the French authorities are legally required to arrest him. If he lands in Hungary, they’re also legally required.

But a Hungarian official said, we’re not going to do it. So it’s unclear what would happen. But the other question is, would Putin want to go to a member state? Because he would be risking it. Some critics of international tribunals say that these tribunals are very weak.

The ICC can indict a head of state, but it doesn’t have enforcement powers. So why is that important? The answer is that it sends a signal to the suspect that they’re under accusations, and their world becomes smaller, because they can’t travel to many places because they’re afraid of being arrested. But former Sudanese president Omar Al-Bashir defied the ICC and tried to show how weak it was by traveling to several African states that were members of the court. He was taking a risk. But by doing that, he was sending a signal that the ICC wasn’t affecting him. It sent the impression that the ICC was a paper tiger.

If Putin loses power, is there any guarantee that he will end up in the dock?

There’s not a guarantee. But here are some scenarios where he would end up in the dock, if he falls from power:

• There could be a nationalist government that no longer thinks he’s effective but still wants to basically maintain similar policies, but they don’t want to hand him over because they want to maintain support among nationalists.
• There could be a democratic state that has to contend with the strength of nationalists in the opposition and think that could undermine the strength of the government and are nervous to hand him over.
• It could conceivably be that he gets exiled in a friendly state — Belarus, North Korea, etc. — and that he won’t be handed over.
• Or — and I’m not suggesting that this would happen — things could proceed like in the case of Gaddafi, who was killed at the end of the war.

There are also scenarios where a suspect who feels that he’s in danger [in his home country] feels safer being handed over. If a former head of state believes that he’s likely to be put on trial and executed in his home country, he might choose to go to the ICC where there’s no death penalty. But this is also very hypothetical.

It’s also important that the warrant never goes away. And so, whatever’s happening today in Russia or in the world, over time things can change and become more likely. That the warrant will never go away means that there’s always a chance that he’ll be arrested. And if he loses power, there are these scenarios where he won’t be handed over, but he’ll never know. When you lose power, you’re usually much more vulnerable to arrest, because you’re less politically valuable to those around you.