Why a warrant for Putin’s arrest may be more than just symbolic

In the end, they decided to hunt the whale. Last week, reports suggested that the International Criminal Court in the Hague was preparing to issue warrants for the arrest of unnamed Russian officials as part of war crimes investigations potentially leading to trials. And while analysts speculated, no one was certain that the ICC would issue a warrant to arrest Vladimir Putin. Then on Friday suspicions were confirmed: Putin is now a fugitive.

The Russian president follows Libya’s Muammar Gaddafi and Sudan’s Omar al-Bashir as the only serving heads of state to have an ICC warrant issued against them. It means that any of the nations that are party to the ICC are obligated to arrest Putin if he sets foot on their territory. In a show of defiance, Putin paid his first visit to Russian-occupied Mariupol. Ukraine described the visit, which took place "under the cover of night"  as one that "befits a thief."

The warrant was issued against Putin for his role in the abductions of Ukrainian children, a charge that Russia not only does not refute but claims to be a decision made on humanitarian grounds. Whatever it means in practice, a warrant for Putin’s arrest has considerable symbolic value. "This makes Putin a pariah," Stephen Rapp, a former U.S. ambassador-at-large for war crimes issues, told reporters. "If he travels, he risks arrest. This never goes away."

Much has changed for the ICC and international criminal justice since Russia invaded Ukraine more than a year ago. Days after Russian troops crossed into Ukraine, Karim Ahmad Khan, the chief prosecutor at the ICC, said an investigation into possible war crimes would "be opened as rapidly as possible." Investigators fanned out across Ukraine and neighboring countries to gather evidence and preserve scenes of mass atrocities, like the massacre of 458 Ukrainian civilians in Bucha last March.

But cases against Russians, including Putin, brought by the court will likely never go to trial. Russia withdrew from the ICC in 2016, after the court judged Russian activity in Crimea to be an "ongoing occupation." The court had earlier angered Russia by authorizing an investigation into its 2008 conflict with Georgia in South Ossetia. Konstantin Kosachyov, the deputy speaker of Russia's upper house of parliament, called the ICC "an instrument of neo-colonialism in the hands of the West."

If Russian belligerence in response to the ICC was inevitable, more interesting is the opposition in the U.S. to helping any investigation. Both the U.S. and Russia are not parties to the Rome Statute, the 1998 treaty signed by 123 countries to give the ICC the power to prosecute genocide and crimes against humanity. And the Pentagon has reportedly expressed reservations that any assistance in an investigation of war crimes in Ukraine might open the door to investigations of Americans.

Yet the parties to the court are increasingly conducting investigations using universal jurisdiction under international humanitarian law, enabling states or international organizations to investigate crimes that are considered so grave that they affect and concern all of humanity. Romania, Estonia, Latvia, Norway, Slovakia and Spain, among other nations, have declared that they will use the principles of universal jurisdiction to investigate war crimes in Ukraine.

"We are seeing something we’ve really never seen before," said Anna Neistat, who leads The Docket, an initiative at the Clooney Foundation for Justice that gathers evidence of war crimes and genocide and represents survivors. "Countries that have never used their universal jurisdiction laws are now opening up the books," she told me.

WHY IT MATTERS

Soon after Russia’s invasion, 39 signatories of the Rome Statute requested an investigation be opened and launched an operation of jurisprudence unprecedented in the court’s nearly thirty-year history. I was recently told by a source that the ICC would establish a permanent field office in Ukraine. The question, though, is: Will the pursuit of war crimes in Ukraine be more than symbolic? The warrant against Putin suggests that the symbolism is important to the ICC, a tactic to show it is not a body that merely pursues cases in Africa while ignoring abuses by richer, more powerful countries.

Mazen Darwish, a Syrian journalist, lawyer and activist, told me that his clients have mixed feelings about the ICC’s focus on Ukraine. A former winner of the UNESCO World Press Freedom Prize, Darwish offered testimony and led efforts to gather evidence in the successful prosecution of the Syrian war criminal Anwar Raslan in 2022. Raslan was tried and convicted in Germany under the principles of universal jurisprudence.

"When I’m talking with the victims of Syrian war crimes, they have this fear," Darwish told me from his office in Paris. "When they see how much Ukraine is in the news and they compare it with Syria, yeah, they feel that nobody cares about their suffering."

But it’s not necessarily a zero-sum game. Indeed, a reinvigorated belief in universal jurisdiction may encourage more countries to commit to pursuing crimes against humanity.

A member of the German Federal Prosecutor’s Office, which opened the case against Raslan, told me that they were in the process of establishing a team dedicated to Ukraine without siphoning resources from other ongoing investigations. The official requested anonymity because he was not authorized to speak to the press.

The ICC has also said it will not leave behind other investigations. An ever-increasing workload before the war in Ukraine had stretched resources thin, admitted Thomas Lynch, an adviser to the ICC. But extra resources contributed to the prosecutor’s office, he said, would "not be for Ukraine alone. They would be for the office and the prosecutor would assign across all investigations."

THE FALLOUT

The ICC’s decision to issue a warrant against Putin has been greeted by the West as a sign of the court’s maturation. Josep Borrell Fontelles, a senior EU official, tweeted that the ICC warrant is the "start of the process of accountability." But how seriously will even some of the ICC’s member states take the warrant? Many in Asia and Africa already view Ukraine as a Western war.

Will the ICC decision open the door wider for China to continue playing up its credentials as the only viable peacemaker? Xi Jinping, having enjoyed considerable coverage for his role in bringing Iran and Saudi Arabia to the table for talks, is perhaps looking to repeat the same trick when he meets in person with Putin this week "for the sake of peace," in the words of a Chinese spokesperson. The Chinese president is also expected to speak to his Ukrainian counterpart Volodomyr Zelenskyy.

While China thrusts itself on to the world stage as a mediator in the Ukraine war, the Biden administration remains uncertain about committing to the ICC’s investigations. Despite congressional support in December to prosecute or extradite war criminals regardless of their citizenship, there is considerable confusion among various U.S. authorities about how to support the ICC investigations. The Pentagon, for instance, blocked the White House from sharing evidence gathered by American intelligence agencies with the court.

China has already argued that the ICC should "respect the immunity of heads of state from jurisdiction under international law," an argument the Biden administration used when it said Saudi Arabia’s Crown Prince Mohammed bin Salman could not be sued by the widow of murdered Washington Post columnist Jamal Khashoggi.

Like dominoes, the impacts continue to reverberate. Darwish, the Syrian lawyer and activist, told me that the Syrians who fled Bashar al-Assad’s brutal regime do feel some hope in knowing that the ICC appears determined to hold Russia to account for war crimes in Ukraine. "When the court works for Syrian victims," he said, "it benefits all victims in any country. Everything’s linked."

Kenneth R. Rosen