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4 Reasons Why Putin's Arrest Warrant Matters
The lack of a trial anytime soon does not mean the I.C.C. is making a hollow gesture.
On Mar. 17, the International Criminal Court in The Hague issued an arrest warrant for Russian leader Vladimir Putin, the first time it has ever done so for the head of state of one of the five permanent members of the United Nations Security Council. It is very difficult to imagine a scenario where Putin would be arrested and brought to trial while still in power, since the I.C.C. does not conduct trials in absentia. In addition, Russia, like the United States, China, and Ukraine (which has accepted the I.C.C.'s jurisdiction over its territory since the war) are not members of it.
However, the warrant is not cheap talk. There are four implications of the warrant that could be significant for Russia's regime and international justice.
Removing a sense of impunity for Putin. Prior to the full-scale invasion of Ukraine, Putin faced little international accountability for his actions. In 2008, he invaded Georgia and faced little more than harsh words from the West. In 2014, he invaded and annexed Crimea, a sovereign part of Ukraine, and used Moscow-backed proxies to take over parts of Ukraine's east. The Obama Administration and the European Union responded to this with sanctions, but did not arm Ukraine with weapons to defend itself. (Ironically, Donald Trump reversed course and started sending anti-tank missiles to Ukraine in 2017, only to be impeached in 2019 for holding up a military aid package to Kyiv for personal political objectives.)
After the full-scale invasion, The United States, United Kingdom, and E.U. countries have provided Ukraine with massive military aid and applied more sanctions. The warrant, however, is the first international legal consequence for Putin.
Opening the door for more war crimes prosecutions. The I.C.C. went straight for the top and charged Putin, along with Maria Lvova-Belova, Commissioner for Children’s Rights. The arrest warrant is narrowly focused on the abduction of an estimated 16,000 Ukrainian children into Russia. Russian authorities have admitted to deporting Ukrainian children into Russia, which they portray as a magnanimous act in wartime. By contrast, atrocities like summary executions in Bucha would be harder to tie directly to Putin. (According to the New York Times, another charge may be imminent for Russia's attacks on Ukraine's civilian energy infrastructure.)
The indictment does not cover the crime of aggression, that is, Russia planning and executing the full-scale invasion of Ukraine. The I.C.C. cannot bring such a case because neither Russia nor Ukraine are members. A tribunal set up by the E.U. is being created for the crime of aggression, and the arrest warrant adds momentum to this effort, establishing the precedent that the head of state has been charged.
Limiting Putin's ability to act on the international stage. Any one of the 123 countries that ratified the Rome Statute establishing the I.C.C. in 2002 are obligated to arrest Putin if he enters their territory. However, it does not mean that they would automatically do so. There is only one other case of a sitting leader receiving an arrest warrant from the I.C.C.: Sudan's president Omar al-Bashir. He was able to travel to 14 I.C.C. member states without being arrested. (All of these states were other African countries, except Jordan.) However, it's unknown whether he declined to travel to any states that refused to give him assurances that he wouldn't be arrested.
Before the Ukraine war (and the pandemic), Putin traveled to the West a few times a year. Since the invasion of Ukraine, his trips have been to post-Soviet republics in Central Asia and the Caucasus and Iran. His travel options won't be expanding. The Russian government would have to obtain assurances in advance that Putin won't be arrested. Any country that receives Putin would be conveying approval of his invasion of Ukraine -- and the atrocities that Russia has committed. (Since the indictment Putin has visited Mariupol and Crimea, two occupied parts of Ukraine.)
Pushing the United States to cooperate with the I.C.C. The United States has had a contentious history with the I.C.C., with some behind-the-scenes cooperation but many public feuds. President Bill Clinton signed the Rome Statute in 2000, but did not submit it to the U.S. Senate for ratification. President Bush "unsigned" the treaty in 2002, declaring that the U.S. wasn't bound by it. President Trump had an openly hostile relationship with the I.C.C., sanctioning its top prosecutor and other personnel. (The Biden Administration reversed this.) According to the New York Times, the Pentagon has blocked the Biden Administration from sharing intelligence with the I.C.C. on Russian atrocities in Ukraine, out of fears that it might set a precedent to prosecute Americans. The Departments of State and Justice, and intelligence agencies support the release of the intelligence, but Biden himself has not made a decision. (Despite longstanding fears of prosecuting Americans, the I.C.C. only prosecutes individuals when states are unwilling or unable to investigate or prosecute.)
The Putin prosecution offers an opportunity to reset the relationship. President Biden has characterized the Ukraine war as part of a battle "between a rules-based order and one governed by brute force." If the Biden Administration wants to demonstrate its commitment to this battle, it could publicly reaffirm and support the ratification of the Rome Statute.