Aarif Abraham is a British barrister and a member of Garden Court North Chambers and Accountability Unit in London.
The International Criminal Court’s (ICC) arrest warrant for Russian President Vladimir Putin on the war crime of unlawfully deporting children to Russia is a historic moment for intentional criminal justice. It is only the third time the ICC has issued indicative charges against a serving head of state, and the first time against that of a U.N. Security Council member.
The warrant starts a process that runs in parallel with another first — the initiative to create a Special Tribunal for the crime of aggression as allegedly being committed in Ukraine. It would be the first aggression-focused tribunal since Nuremberg and Tokyo, which prosecuted axis-power leaders after World War II.
If created, such a tribunal could prosecute senior military and political leaders for what the 1946 Nuremberg judgment called the “supreme international crime.” Why? Because had the manifestly illegal acts of aggression — such as invasion, attack or occupation — not occurred, the egregious harm inflicted on civilians, including tens of thousands of war crimes, would never have happened.
But the ICC cannot prosecute the crime of aggression in relation to Ukraine, only other international crimes like war crimes, crimes against humanity or genocide. The only way for the ICC to prosecute the crime of aggression would be either with Russia’s consent, or through a U.N. Security Council referral. And it is for this reason the initiative for a tribunal led by Ukraine has received the active backing and strong engagement of over 30 countries — and the list is growing.
So, where does the ICC arrest warrant for Putin leave both processes, and which is more likely to succeed? The truth is, the ICC route and the tribunal route are highly complementary.
First, Ukraine rightly wishes to see all responsible military and political leaders in Russia and Belarus held to account for the totality of the harm resulting from aggression. And there would be far more senior leaders caught by the aggression net than the ICC net, which requires a strong evidential link between international crimes being committed by soldiers on the ground and senior leaders in Russia and Belarus. This usually makes such crimes difficult to decisively prove — particularly when Russia claims its actions, such as the deportation of children, are motivated by humanitarian concerns.
By contrast, the crime of aggression is easier to prosecute, as it goes straight to the top and does not require extensive testimonial evidence, given its focus on the high-level acts of the armed forces. It may, however, likely require significant material from intelligence and military sources.
Second, Russia heavily contests the ICC’s jurisdiction to try nationals of countries that are not its members — countries that include Russia, the United States and China. So, while the ICC’s 123 members are under a legal duty to apprehend Putin, executing the arrest warrant will be a source of immense political, and possibly legal, contention, as there is a view that serving heads of state enjoy personal immunity from arrest or prosecution — especially before courts to which they do not belong.
Thus, the consequences for a country apprehending the Russian head of state are not likely to be insignificant, but a special tribunal would face a similar challenge —although a different pool of states may back it. And in such a case, the support of powerful countries like the U.S., which has now been confirmed, could decisively strengthen the possibility of apprehending Putin, and provide some degree of immunity from Russian retaliation in enforcing any arrest warrants.
Third, the ICC route is clear, and its jurisdiction derives from a treaty that its 123 members agreed to adhere to.
The tribunal would likely be created by a similar treaty, ideally agreed with the U.N. General Assembly and/or the European Union and/or multilaterally. Its jurisdiction could be inherent from the extant prohibition on aggression under international law, which binds states through custom, combined with the prohibition on aggression under Ukrainian law. Incidentally, there is a prohibition on aggression under Belarusian and Russian law too — a concept that was ironically pioneered, and strongly advocated for, by the Soviet Union in response to the horrors it suffered during World War II.
Considering the continuing aggression, and the risk of further contagion to other countries, both the ICC and special tribunal routes ought to run on a parallel track, for continued backing for a tribunal means there would be no hiding place for senior Russian and Belarusian leaders.
And successful charges before such a tribunal would not only encapsulate the horrors of the harm suffered, but it would finally recognize the crime allegedly being committed by Putin and those around him by its full and proper name.
