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Crisis in The Hague: Putin Indictment Deals Fatal Blow to ICC Legitimacy

Arnaud Develay 

21st Century Wire

Already under considerable pressure these past few years for its perceived selective prosecution of mostly African leaders, the International Criminal Court has placed its own proverbial “nail in the coffin” on March 17th when it issued an arrest warrant against the Russian Federation’s President Vladimir Putin.

To be sure, the Court had since its inception faced numerous obstacle in trying to establish its status as the preeminent jurisdiction tasked with prosecuting senior official alleged to have committed or abetted the most heinous crimes under international criminal law.

First, the United States never ratified the Rome Statute. While former US President William J. CLINTON had hinted that the US would join the list of Member-States by signing (but not ratifying the Treaty of Rome), George W. BUSH (egged on by his then Permanent Ambassador to the UN, John BOLTON) promptly dashed any hopes that this would ever happen. Indeed, the BUSH administration presided over the adoption of the Hague Invasion Act of 2002 (the same year the Court effectively came into existence in the wake of its having collected the prerequisites sixty signatures from its Members). The Act openly called if necessary for the US military to storm the ICC in order to exfiltrate US soldiers.

If that wasn’t enough of a message that some (the most powerful) States would take a pass on granting the Court jurisdiction over their nationals (China, Saudi Arabia, Iran, India and Israel never even signed the Treaty), Washington proceeded to amend all of the SOFAs (Status of Forced Agreements) negotiated with the governments of every country having ratified the Rome Statute where the US has some of its troops stationed by providing that American soldiers would not be subjected to any types of extradition proceedings to the Hague (ASPA).

This sequence of events essentially set the tone for 20 years of subsequent campaigns engineered by the Court so as to establish its own relevance.

The powerlessness of the Court is to be found within the Rome Statute itself. Indeed, the Court may not claim jurisdiction over occurrences of alleged Jus Cogens violations (those violations not subjected to any Statute of limitations) unless said violations are alleged to have occurred on the territory of a Member-State which thus has accepted the Court’s jurisdiction or if said jurisdiction is expressly granted through a resolution adopted by the UN Security Council (not subjected to a veto from any of its Five Permanent Members).

Second, the Court’s jurisdiction was always conceived as operating under the principle of complementary, meaning that (assuming either one of these preconditions existed, it still would be required to provide the State over which territory the crimes were allegedly committed the priority in trying to establish a functioning mechanism; the ICC only taking over the proceedings in the event such State was either “unwilling or unable” to conduct operations). A case in point is that of Saif-AL-ISLAM, the son of former Libyan strongman Muammar QADDAFI and a front-runner for that country’s presidential election. Even though subjected to an arrest warrant since 2011 and once held in custody by local militia, Saif was never turned over to the Hague notwithstanding the material impossibility to conduct a trial under serene conditions in what is admittedly a country characterized by chaos ever since the overthrow of QADDAFI in late 2011.

Third, as is usually the case when one refers to a law “as lacking teeth”, the ICC was never doted with the means to enforce its decisions. In other words, the execution of an international arrest warrant was always predicated on the Member-States providing assistance in arresting and extraditing the suspect to face proceedings. (The Court does not conduct proceedings in absentia). This means that any individual targeted by an arrest warrant could still reasonably expect to travel to States not subjected to any obligations to “provide assistance to the court” without fear of being arrested.

If one takes into consideration another substantial problem for the Court, i.e. the perception within the African Member-States that the ICC tends to favor the prosecution of African (and Global South generally-speaking) figures, it stands to reason that such cooperation is likely to be difficult to obtain. The case of Sudan’s former President Omar Al-BASHIR comes to mind. AL-BASHIR has been traveling to numerous countries, including ICC-Signatories despite being under the cloud of an arrest warrant.

All of the preceding developments are likely to have been highlighted owing to the public relation disaster occasioned by the flawed prosecution of former Ivory Coast President Laurent GBAGBO. Arrested and extradited to the Netherlands by his erstwhile rival for the presidency Alassane OUATARE, (Ivory Coast had signed and ratified the Rome Treaty) GBAGBO was only recently acquitted of all charges by the Court’s Appeal Chamber, thus putting an end to a decade-long procedure which included a defining moment when the Prosecutor’s Office appealed the Trial Chamber’s first verdict of acquittal. Many African States once enthusiastic about joining the ICC began to seriously call into question the zealous prosecution of one of their fellow Africans even though BUSH and BLAIR (the UK is a ICC Member-State) were seen going on speaking-engagement seemingly unscathed.

This discrepancy actually prompted a grouping of Muslim States in 2007 to hold their own regional tribunal in KUALA LUMPUR to judge BUSH and BLAIR and issue a verdict of culpability for the war crimes, and crimes against humanity.


In 2016, former ICC Prosecutor Fatou BENSOUDA began looking into allegations of war crimes against members of the US armed forces in Afghanistan. Probably mindful of the criticism leveled against her office in the wake of the Trial Chamber’s acquittal of Laurent GBAGBO, Prosecutor BENSOUDA gambled that the Court would mitigate the damage to its impartiality by going after Uncle Sam’s protégés.

This turned out to backfire in spectacular fashion as she and her colleagues were slapped with sanctions, prohibited from entering the US and targeted by the State Department. Faced with the wrath of Washington, BENSOUDA ended up feeding the increasingly loud consensus that the ICC only went after weak(er) States.

In 2020, BENSOUDA was replaced with British Prosecutor Karim KHAN.

KHAN was considered to be the consummate establishment consensual candidate. In Western capitals, it was thought that the new Prosecutor would refrain from alienating the US and instead attempt to establish a cordial relationship with Washington.


As the conflict between Russia and Ukraine escalated to a new level in February 2022, the ICC experienced a reversal of fortune it could only have dreamed about a year earlier.

In the context of a massive coordinated campaign aiming at characterizing Russia’s military operation as an ‘act of aggression’ accompanied with allegations of war crimes and crimes against humanity (see the alleged “BUCHA massacre,” the “IZIUM Cemetery” etc.), Karim KHAN was soon dispatched along with his teams of forensic investigators to lend his imprimatur on a judicial process which culminated last March 17th in the issuance of an international arrest warrant on the person of Russian President Vladimir PUTIN and Russian OMBUDSWOMAN and Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Maria Alekseyevna LVOVA-BELOVA, for allegedly ordering “the deportation of ukrainian children to Russia”.

The ICC warrant reads as follows:

Today, 17 March 2023, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova.

Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for 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 (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).

Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the  President of the Russian Federation, is allegedly responsible for 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 (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).

Thus far, it would appear that KHAN’s strategy paid off.

However, it remains to be seen whether or not the court’s charges will survive serious scrutiny.


When one takes the time to review the evidence, the report on the issue provided by Amnesty International figures prominently.

This should arise suspicion on the simple fact that this very NGO had earlier published a report concluding that the Ukrainian Armed Forces were actually engaged in the shelling of civilians, as well as using residents as human shields, itself regarded as a war crime under international conventions. For this, Amnesty International was chastised and forced to recant by Kiev and its Western supporters.

It’s also worth noting this also comes amid various reports of Ukrainian forces shelling civilians in Donbass.

As it were, the zones under consideration (KHARKOV and IZIUM) had been up until October 2022 under Russian control. In order to allow children to escape the zone of combats and take prophylactic measures to preserve their psyche, arrangements were made with parental approval to take the kids over to Summer camps in Crimea. Any orphans were taken in other parts of the Russian Federation not only under the same rationale but also in order to initiate legal adoption procedures per Russian law.

When Kiev’s forces recaptured the aforementioned areas, they immediately started to hunt for Russian sympathizers as had been witnessed previously in KHERSON.

Among the people exposed to retaliatory measures obviously figured the parents of some of the children who’d been spending the Summer of 2022 in Crimea.

Taking into account the prior instances of threats to the physical integrity of ethnic Russians trapped in UAF-controlled areas (who can forget the civilians attached to poles outdoors in minus-zero temperatures, subjected to beatings and/or prevented from burying their dead according to Muscovy Orthodox rites), it is not a stretch to imagine that some form of blackmail could have been inflicted on these people in order to force them to issue statements lending support to the charges of “deportation” (usually deportation involves relocating to a detention facility and not a Summer resort like the one used for hosting evacuees in Crimea) lest they be faced with extreme prejudice/grievous bodily injury.

This state of affairs (the likely statements obtained under duress) is obviously not something that the ICC Prosecutor substantially engaged in probing.

Moreover, it certainly defies reason that Russia would send large numbers of children at risk back into the conflict zone.


Legally-speaking, the Russian Federation has not recognized the jurisdiction of the court.

It has, like the US, signed the Treaty but never ratified it.

Therefore, it is not as much a legal initiative as a political one, timed to coincide with Russia’s recent hosting of the Russia-Africa Conference (and the Chinese State visit to Moscow) which paves the way for next August BRICS Summit slated to be hosted by South Africa.

The US and its allies hope to dissuade African nations from pursuing their rapprochement with the Russian Federation and more particularly aims to pressure South Africa into “surrendering” the Russian leader.

To be sure, without the expressed cooperation of its many African Member States, the mandate of the ICC would be severely weakened.

As it turns out, this arm wrestling might just have the opposite effect and compel African States to instead emulate the Philippines under President DUARTE to bolt out of an institution which is now more than ever viewed as an instrument of Western domination.

Author Arnaud Develay is a lawyer specializing in international criminal law. He began his career in 2005 under the mentorship of former United States Justice Minister Ramsay Clark defending former Iraqi President Saddam Hussein and his companions. He then participated in the defense of Ilitch Ramirez Sanchez (Carlos), advised certain figures of the Constituent Yellow Vests Movement, before spending two years in the Syrian Arab Republic reporting on the deleterious effects of Washington’s CAESAR sanctions regime.

READ MORE UKRAINE NEWS AT: 21st Century Wire Ukraine Files



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