The International Criminal Court has just issued an arrest warrant against Vladimir Putin and Maria Lvova-Belova, Russian Commissioner for Children’s Rights. This is an event whose meaning and consequences must be understood.
Vladimir Putin is therefore being prosecuted by the International Criminal Court. The ICC issued an arrest warrant for him on March 17. Russia is not a member state of this Court, to which Moscow says it owes nothing, having not ratified its statute, the Rome Statute, as it is called, since this Court was created in Rome in 1998.
The ICC accuses the Russian President of having deported and transferred children from the occupied territory of Ukraine. This decision obliges in principle the 123 member states of the Court to arrest Vladimir Putin and transfer him to The Hague… if he sets foot on their territory. Of course, there is little chance of this happening, but the significance of this judicial threat is not trivial. It is necessary to take a closer look and broaden the scope to understand.
Ukraine and the United States welcomed the decision of the court. Like Russia, however, neither Washington nor Kiev is a party to the Rome Statute. It should be remembered that some American administrations, those of George W. Bush and Donald Trump in particular, even sought to scuttle the Court. Finally, we note that other States, such as China and Israel, have not joined the Rome Statute either.
Of the five permanent members of the United Nations Security Council, only two have joined the ICC: France and Great Britain. Paris and London are indeed much more sensitive to the charms of Human Rights in the (official) presentation of their foreign policy. But why do some states refuse to ratify the Rome Statute? Most of the time, this choice is motivated by the desire to protect their military personnel by expressing their own strategic vision. The more a state projects its military forces abroad, in conditions that are always complex, the more it takes the risk of exposing its soldiers to the legal proceedings of the ICC. More generally, the refusal to be a state party to the ICC corresponds to a desire to set aside anything that could limit the parameters of power and the ability to decide on the use of force. The relationship between the judiciary and the military is very direct.
The arrest warrants issued against Vladimir Putin and Maria Lvova-Belova, the Russian Commissioner for the Rights of the Child, are obviously a political event, since this is the first time that a member state (and permanent member) of the Security Council has been prosecuted in this way.
The deportation and transfer of persons are indeed considered war crimes (Article 8, §2 / vii of the Rome Statute). It is probably because the Court and its Prosecutor, Karim Khan, have the most evidence in this area that these arrest warrants are focused on the very sensitive issue of the deportation of children. The UN has, however, made public the information it has, and its assessments, concerning the numerous war crimes committed by the Russian army in the course of its invasion, as well as some crimes committed by Ukrainian soldiers. These arrest warrants against Russia would therefore probably only be a first act.
What should we think about it?
One cannot defend Russia’s brutal and criminal practices in Ukraine. All too often they border on a process of invasion, occupation and military aggression. A dramatic process in which Ukrainian civilians and society have paid a very heavy price. To venture to deny or water down the facts would be a dishonorable breach of the requirement of a certain ethics in politics. All the more so since these facts are not only the result of the unfortunate circumstances of the fighting and the inevitable perils of war, but are too often the result of strategic and military choices made by the Russian authorities. Strong questions are however raised, which deserve to be examined… including in the spirit of this requirement of a certain ethics in politics.
War crimes (and even crimes against humanity) are intrinsically linked to war. To all wars. The 20th century reminds us of this. However, one cannot grant the slightest « normality », or suggest the slightest fatality to this reality which, unfortunately, constitutes a good part of human history. Political and moral ignominy is part of the contradictions of our… humanity. The idea of international justice is therefore fundamentally right. It is good to remember this.
It is also necessary to draw the consequences. To be legitimate, justice must be universal, in the sense of equality and impartiality in the face of the facts and in the face of the essential problems of responsibility and rights. We are very far from this today. By deciding to prosecute Putin and a member of his regime, the ICC is hitting hard. But it also highlights, as a direct counterpoint, its inability to deal with other situations where international law, human rights, the United Nations Charter, and major texts such as the Universal Declaration of Human Rights are seriously flouted, without any consequences, in a characterized impunity. Other presidents, such as George W. Bush, have committed criminal contempt of law without being brought before the ICC. Above all, one must recall the example provided by the treatment, or rather the incredible and appalling non-treatment by the courts, of the issue of Israel’s military occupation and crimes in Palestine for decades. This is not just a double standard. The ICC is exposing its initial weakness and inaction in the face of the logic of the most powerful, and that other « law » of power relations.
Some people hope that this decision to prosecute Putin could herald the beginning of a new momentum, a « resumption » of the ICC. In the current context, who could believe it? The way in which the ICC carries out its mission cannot be separated from the very worrying and long-lasting process of retreat and instrumentalization of the law, of the decomposition of multilateralism, of the weakening of the role of international institutions and in particular of the UN. It must be noted that a negative process is underway in a period of open degradation, at least since the 1990s, marked by an acceleration of militarization, international tensions and the uninhibited logic of power and force. The demand for respect for international law is receding in a world order where the gains of the 20th century in terms of collective responsibility and shared security are constantly regressing. This liberal international order « based on rules » is constantly breaking down.
In this context, the judicial option, that of the justice embodied by the ICC or by other courts also set up to deal with the most serious crimes (1), means and implies the choice of a specific logic: judging war criminals brought to resignation by a military defeat that ends a conflict. Whereas the negotiation of a political solution presupposes the need for credibility of the process undertaken and of the people responsible for bringing it to a successful conclusion. This is the idea that justice and peace are inseparable. We will come back to this. This idea is not without validity in principle, but it obviously carries the risk of being in contradiction with the need for a negotiated political outcome. Indeed, how can a settlement be properly negotiated with people who have political power but are discredited by the threat of a heavy judicial sentence? Issuing arrest warrants against a belligerent cannot fail to weaken or even devalue the relevance and legitimacy of a political settlement.
In such a context, there is also a risk that the choice of the judiciary will be seen as a form of instrumentalization of international law and justice for political purposes. Or at least what exists as international justice. It is probably for this reason that the contradiction between the political and the judicial is only rarely highlighted as an expression of the problematic realities of the current international order, of its dominant parameters… and of the still incipient character of international justice. The latter has not yet reached, far from it, the capacity and maturity necessary to be able to escape in any way from the power relations and the assertions of power as hegemonic parameters of international relations.
In this spirit, the arrest warrants issued by the ICC against Vladimir Putin and Maria Lvova-Belova clearly have a political consequence or intention : to try to isolate the Russian President and to embarrass those who still refuse to condemn him and to sanction Russia. It should be noted that this legal action was launched shortly before Xi Jinping’s official visit to Moscow from March 20 to 22. This is obviously not the best context for a visit by the Chinese President, while Beijing, posing as a neutral mediator, has just presented an initiative to open a political settlement process for the war in Ukraine. This contradiction or objective tension between the choice to value politics and the choice to place the stakes of the war on the judicial level is clearly visible.
It is regrettable that French diplomacy was able to express, through the voice of the Minister, Madame Catherine Colonna, the idea that the decision of the ICC « can change the course of events ». Let us emphasize that the best way to change the course of events (which appears to be urgent) would be precisely to push voluntarily for a political solution. To break the escalation and thus seek to avoid any rise to extremes that could be fatal. For how much longer will we have to put up with the appalling denial of this simple requirement of common sense?
1) These are mainly the international criminal tribunals set up following the wars of the break-up of Yugoslavia (1993), the genocide in Rwanda (1994) and the terrorist acts that struck Lebanon from 2005 onwards. The International Court of Justice linked to the United Nations system is of a different type. Its mission is to settle conflicts between states. 19 03 2023