A week ago, the International Criminal Court issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s children’s rights commissioner, for organizing the scheme by which Ukrainian children have been taken from their families and deported to Russia. In issuing the warrants, the court charged Putin and Lvova-Belova with “the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.”
The court, which was established in 1998 by the Rome Statute and came into effect in 2002, is obligated to investigate, charge and try individuals who have allegedly committed the “the gravest crimes of concern to the international community,” ranging from genocide to violations of the laws of war, in cases where the government with national jurisdiction is unable or unwilling to do so. Following the charges against him, Putin now joins the likes of former Sudanese President Omar al-Bashir and the late Libyan leader Muammar Gadhafi as serving heads of state charged by the court. Former President Laurent Gbagbo of Cote d’Ivoire was also charged by the ICC in 2011, but that followed his ouster.
The ICC’s decision to issue a warrant for Putin has been described as “unsurprising,” “long overdue” and “encouraging.” It could also be described as notable, since ICC investigations and charges have until now concerned small states throughout the Global South, particularly in Africa, but never a major power like Russia.
But there is another word that can describe the ICC’s decision: unhelpful. While some maintain that the rulings are symbolically important and can have a deterrent effect on others who might be considering such crimes, at the end of the day, the ICC decision is irrelevant at best and counterproductive at worst.
First, the ICC arrest warrant will in no way change Putin’s behavior, just as the fear of the ICC potentially investigating war crimes committed during the Russian invasion clearly did not deter him. Putin is concerned about his legacy and committed to recreating the Russian Empire, conceivably at any cost. He has no interest in being seen as a defender of human rights or aligned with what he might characterize as Western-dominated institutions like the ICC. If the Ukrainian armed forces’ military resistance isn’t going to change his behavior, and it has not, then neither will a simple arrest warrant from an international court’s chief prosecutor.
It is also unlikely that the ICC warrant will result in actual justice, as Putin will almost certainly never be physically tried in The Hague. That would require him either to be removed from power in Moscow and then extradited by whoever replaces him in the Kremlin, or else toppled and captured by an international military invention. Neither of those scenarios is going to happen. Indeed, Putin appeared to want to underscore the fact that he can escape justice by immediately defying the ICC’s decision with a visit to occupied Mariupol in Ukraine days after it was announced.
Second, the ICC warrant is unlikely to change the behavior of Putin’s main foreign supporters, such as the members of the BRICS grouping. Two of them, China and India, are—like Russia—not parties to the Rome Statute. Indeed, Chinese President Xi Jinping didn’t hesitate to follow through with his planned trip to Moscow, where he met with Putin this week, after the ICC announcement.
The idea of bargaining with Putin was already highly controversial, but now it is virtually impossible, given the stigma attached to negotiating with a war criminal.
Two other BRICS members, Brazil and South Africa, are parties to the Rome Statue and therefore legally obligated to arrest and extradite Putin to The Hague if he enters their territory. But will that happen? Consider South Africa, which will host this summer’s BRICS summit and is well aware of its legal obligations under the Rome Statue. In fact, it has already been in this very situation in 2015, when Sudan’s Bashir attended an African Union summit in the country. Back then, the South African government refused to arrest him, claiming Bashir enjoyed immunity as a head of state, a decision that the ICC later strongly criticized. But given that precedent, and South Africa’s continued support to Russia up until now, it is unlikely that its government will detain and extradite Putin to The Hague should he attend the BRICS summit.
Further lowering the probability that Putin will be arrested and extradited by a third country is the fact that one of the most vocal critics of Russia’s actions in Ukraine is not party to the ICC either—the United States. While President Joe Biden called the ICC’s decision to issue a warrant for Putin’s arrest “justified” and his administration lauded the move, he has not taken any steps toward joining the court. Though the U.S. participated in the negotiations that led to the Rome Statute and even signed it in 2000, it never ratified the treaty.
When the court officially came into existence in 2002 following the ratification of the Rome Statute by 60 of the original signatories, then-President George W. Bush formally notified the United Nations that the U.S. did not consider itself bound by it, out of fears the court could be used to prosecute U.S. troops operating abroad. This was especially the case since the U.S. was in the early stages of its Global War on Terror, with troops deployed around the world, notably in Afghanistan and Iraq. Subsequent administrations have continued to refrain from joining the court, concerned that it could make rulings that go against U.S. interests.
Third, one could even argue that the ICC’s announcement makes things worse. The international jurist George Robertson once wrote, “Indictment by an international criminal court is the Achilles heel of traveling dictators, because it deprives them of the immunity they continue to have against prosecution in the courts of other countries.” But attaching an ICC stigma to a leader is also an Achilles heel for negotiators. In the case of Putin, it is now harder for Western states to bargain with him, whether over an eventual offramp in Ukraine or anything else. It could also make Putin feel like he has no recourse but to hold onto power. The idea of bargaining with Putin was already highly controversial, but now it is virtually impossible, given the stigma attached to negotiating with a war criminal.
An ICC decision to charge a leader has already worsened the situation in the past, in the case of Gadhafi. After the ICC charged him with two counts of crimes against humanity in June 2011, soon after the uprising against his rule had erupted, a Libyan government spokesman dismissed the arrest warrants, declaring, “The ICC has no legitimacy whatsoever. We will deal with it.” Gadhafi’s defiance was redoubled by the fact that by then he was already backed into a corner, and the ICC’s announcement only worsened his isolation. At that point, the international community became less likely to bargain with Gadhafi, and he became less likely to trust any potential deal they might offer him. Though his intransigence ultimately led to his demise, it also caused the conflict in Libya to persist.
A final piece of context helps illustrate the apparent irrelevance of the charges against Putin. In the ICC’s 20 years of existence, cases brought before it have resulted in 10 convictions, five of them for war crimes or crimes against humanity. Those five individuals all came from small nations, and none were heads of state. The sad truth is that holding heads of state legally accountable for crimes against humanity has had at best an uneven history.
None of this is to say that the ICC as a whole is useless or irrelevant. It can fill a useful purpose under certain conditions. But those conditions are in no way in place when it comes to Putin. Unless there is an appetite for forcefully bringing Putin to justice, such as by invading Russia in order to overthrow his regime, justice in this case will not be served.
Paul Poast is an associate professor in the Department of Political Science at the University of Chicago and a nonresident fellow at the Chicago Council on Global Affairs.