Why did the International Criminal Court in The Hague issue an arrest warrant for Putin if no one is going to execute it, ex-ICC Judge Howard Morrison answers

Is the warrant for Putin’s arrest a symbolic step or a decision that can have a real legal effect, with all the consequences for the defendants?

– I will only express my personal opinion, since I no longer have access to cases, but yes, of course, this is a symbolic step. However, it can turn into something more and take legal effect. The problem is that the International Criminal Court is a court based on agreements. Unlike the tribunals for Yugoslavia and Rwanda, it does not have the powers that could be granted by the UN Security Council, in accordance with Chapter VII [Устава ООН].

Tribunals can force other states to cooperate, and the ICC is completely dependent on the support of conscientious states, which it does not always receive. If, for example, Putin or Lvova-Belova visit a country that is a member of the ICC, that country will be obliged to arrest them, in accordance with the warrant. But whether the government will take such a step depends only on how ready the authorities as a whole are to fulfill their obligations under the agreement and how worried they are about Russia’s reaction. The truth is that Putin and other Russian officials are unlikely to go anywhere without prior guarantees that they will not be arrested. They don’t want to check [возможность ареста] on himself.

– Among the countries participating in the Rome Statute there is, for example, Tajikistan – an authoritarian state in good relations with Russia. How do you assess the likelihood that such a country would decide to arrest the head of a nuclear power?

– Speaking frankly and based on political realities, it is unlikely. But it is difficult to predict the development of events in such cases. As I already said, Putin will not go anywhere without prior agreements, and these agreements will consist in Russia’s pressure on other states. Of course, in theory everything is possible, but the reality is different now.

Does the presence of an arrest warrant create a legal status for Putin and Lvova-Belova? Are they suspects, accused?

– Now they are considered suspects, formal charges are brought on the spot.

– The ICC can issue secret arrest warrants, can’t it? So there might already be other suspects in the case that we don’t know about?

— Yes, the court can confirm the charge in a non-public way. I would not be surprised if such conclusions are already in the case. But it is impossible to find out about them until the prosecutor decides to release the documents. I find it unlikely that there are only two warrants.

– Now the ICC has issued warrants on the fact of the illegal transfer and deportation of children. Why did the prosecutor choose these episodes, despite the fact that the court is investigating many other war crimes committed in Ukraine?

– I suspect that the prosecutor is satisfied with the evidence base only on these episodes. He’s only working on bringing charges he’s sure of. That is, we are talking about episodes for which there are high chances of getting a guilty verdict in court. It is the prosecutor’s rational approach to use only the best available evidence.

– What steps does the court usually take after issuing a warrant? Is there a way to influence the situation?

– Now the task of the court is to push the states that are parties to the agreement to cooperate if Putin plans a visit to their territory or the territory of another country that can be influenced. Nothing else will happen until it becomes possible to implement the court’s decision. Other than that, the court is unlikely to be able to do anything. Now it’s, let’s say, waiting games.

Sudanese President Omar Al-Bashir, who also had a warrant for the ICC, enjoyed freedom of movement and traveled to countries that signed the Rome Statute. Is there really no instruments in international law that can guarantee the detention of a suspect?

– I’m afraid not, it’s not. The International Criminal Court is completely dependent on the will of countries to fulfill their obligations. If states ignore their obligations, they can be criticized, create a negative public image for them, but no more. What countries cannot do is to justify non-fulfillment of obligations by national law, as this is prohibited by article 27 of the Vienna Convention on the Law of Treaties. In order to avoid fulfilling certain obligations under the statute, a reservation had to be made at the time of accession to the agreement. But in the case of the arrest warrant, I can’t imagine such a situation. A country will either comply with the provisions of the statute or not.

– In this case, Ukraine clearly becomes a party to the case, but is not a party to the Rome Statute, since it has not been ratified in the country. Are the rights of Ukraine in this case somehow limited?

“Of course, it is always better for the process if a country that wants to cooperate with the court ratifies the treaty. But Ukraine has already recognized the mandate of the International Criminal Court twice, in 2014 and more recently, significantly increasing the degree of recognition.

Now the ICC has full powers in the framework of filing charges and arrests on the territory of Ukraine, and also intends to promote the ratification of the statute in the country.

I don’t see what could prevent the ratification of the Rome Statute now, when the country clearly wants to give the court a chance to act. Ratifying a treaty is usually a matter of domestic politics. Now the rights of Kyiv are not limited in anything, just as the rights of the ICC are not limited. The situation is the same as if Kyiv had ratified the statute.

— Germany already promised, which will delay Putin if he ends up on the territory of the country. But how does this procedure take place? What authorities are involved in the process?

– If the suspect arrives on the territory of the country, the national police and special services should join the case. They have the right to execute the order, that is, literally, as in any other detention, to physically place the person involved in the isolation ward. After passing all the procedures defined by internal legislation, they are transferred to The Hague.

– Obviously, the heads of state do not travel alone, they always have security from among the employees of local intelligence agencies. Is there a potentially risky conflict situation here?

– This is a very speculative topic. Of course, there is always a possibility, but, in my opinion, it is extremely low. Let’s admit, no matter how numerous and trained the security of the head of state is, it will never surpass the full-fledged special services of an individual country.

How would you rate the likelihood that the order will be filled in the near future?

In the near future, it is highly unlikely. Putin and other suspects may never leave Russia again, and the Russian Federation does not look like a state ready to extradite its officials. But, please note, no one even thought that [экс-президент Сербии Слободан] Milosevic will appear before the tribunal, which [первый президент Республики Сербской Радован] Karadzic will appear before the tribunal, which [сербский генерал Ратко] Mladic will be there. But in the end, all three ended up there.

But here we are talking about a completely different court. The International Criminal Court does not have the same broad powers as the ad hoc tribunals.

Yes, the international tribunal for the former Yugoslavia had powers under Chapter VII of the UN Charter, and each state of the UN General Assembly was obliged to detain a suspect at the direction of the court. But if a new special tribunal is going to be assembled now, its form and powers have yet to be discussed, so all comments in this regard are premature.

— Some countries that have previously signed the Rome Statute refuse to recognize it. For example, the US and Russia “withdrew” their signatures. Does this mean that Washington will not comply with the ICC order, even if, theoretically, Putin comes to the States?

“They are not required to detain a suspect, but the court usually expects conscientious governments to execute the warrant. But again, let’s face it, Putin won’t go to the States in a million years. This is the last place on earth where you can wait for him. Much depends on political will and on what kind of government is in power in a given country.

That is, theoretically, one can expect Putin to be detained in the United States under a democratic administration. Republicans, on the whole, are not in the mood to extradite people to other countries. But this is a very unlikely scenario and should not be considered at all. If Putin goes anywhere, it will be Iran, China and North Korea, and they certainly will not comply with the orders of the international court, it is simply not politically expedient. But no one knows what scenario history will follow. Life is an unpredictable thing.