The International Criminal Court last week issued an arrest warrant against Russian President Vladimir Putin, alleging that he and one of his senior officials had committed a "war crime" via the alleged government policy of forcibly relocating Ukrainian children to Russia.
The case raises plenty of legal questions. To this point, international tribunals have focused on violent attacks against civilians and other alleged crimes committed on the battlefield. They have not adjudicated the sort of crime Putin is charged with, which is based on Russia’s legal obligations as an occupying power. Yet the impact of the ICC’s move will almost certainly be less in the courtroom than in the diplomatic realm. That’s because Vladimir Putin is exceedingly unlikely to end up in The Hague.
The impact of the ICC’s move will almost certainly be less in the courtroom than in the diplomatic realm.
Kremlin spokesperson Dmitry Peskov immediately declared that the charges were “null and void.” He has a point. As a non-ICC member, Russia has no legal obligation to respect the court’s processes. And the ICC itself has no means of making arrests; it relies entirely on member countries to enforce its warrants. Putin will be perfectly safe in Russia or on the territory of friendly countries like China. What’s more, the ICC’s rules mean that no trial can begin without Putin being present.
For the foreseeable future, the arrest warrant will be little more than a noteworthy piece of paper — unless it has an impact on Putin’s political position at home or abroad.
One question is whether the court’s move galvanizes opposition to Putin within Russia. Resistance to Putin’s government has flared periodically, and regime opponents celebrated the ICC charges. “Lock him up!” Vladimir Milov, an ally of imprisoned opposition leader Alexei Navalny, reportedly responded. But there is little reason to expect that the court’s action will change the political dynamic inside Russia. In fact, the actions by the ICC, which is based in Western Europe and largely funded by Western governments, may even generate some sympathy among ordinary Russians for their beleaguered leader.
On the international stage, the reaction to the ICC’s move will be most consequential outside Europe and North America. Western countries are mostly united in outrage at Putin and have reacted positively to the court’s gambit. Elsewhere, the calculus is more complex. Chinese President Xi Jinping visited Moscow this week, making clear that his country’s alliance with Russia stands firm despite the charges.
Other major powers, including Brazil, India and South Africa, will now have to chart their own paths. South Africa, which is an ICC member, faces a particular challenge. It has tightened links with Moscow in recent months, including through joint military exercises. It is also scheduled to host a summit of the so-called BRICS countries this summer, which Putin would normally attend. South Africa has a complicated recent history with high-level summits and ICC arrest warrants. In 2015, it welcomed Sudan’s Omar al-Bashir to an African Union meeting in Johannesburg despite ICC charges against him. The government’s failure to arrest Bashir prompted a rebuke from the court and nearly led South Africa to withdraw from ICC membership.
For the moment, South Africa’s government has stayed mum about whether it will invite the Russian leader, but its choice will be telling. If South Africa ends up shunning Putin, it would be a sign that the court’s move has made Russia’s diplomatic position more precarious. A South African decision to invite Putin, by contrast, would be fresh evidence that international law struggles to keep pace with political realities.
For the foreseeable future, the arrest warrant will be little more than a noteworthy piece of paper
The other political question created by the charges against Putin will be how they intersect with diplomatic efforts to end the war. At the moment, peace negotiations are moribund. But if the military stalemate continues, pressure for a settlement will inevitably grow. And Russian diplomats may well demand a removal of charges against Putin as a precondition for moving forward with talks.
There is a mechanism for doing that built into the ICC’s founding document: The United Nations Security Council has the power to delay court proceedings if it believes they are an obstacle to restoring peace and security. Sidelining justice would be a painful pill for Western countries to swallow, but it could end up being the price of serious negotiations.
In recent months, at least one senior U.S. official has cited the precedent of the Nuremberg trials in the context of Russia’s alleged crimes. But the situation the world faces in Ukraine is really nothing like the post-World War II environment in which Nazi leaders faced trial. Russia has not and will not unconditionally surrender. High-level diplomacy with senior Russian leaders remains essential. Startling as it was, the ICC’s move against Putin may end up being a footnote rather than a new chapter in the story of the Ukraine war.