ANALYSIS | The ICC has issued an arrest warrant for Putin. What does this mean for SA?

11
ANALYSIS | The ICC has issued an arrest warrant for Putin. What does this mean for SA?
ANALYSIS | The ICC has issued an arrest warrant for Putin. What does this mean for SA?

Africa-Press – South-Africa. While the ICC arrest warrant for Putin doesnt have much practical enforceability, it does has powerful symbolic value, argues Eben Viktor.

On 17 March, 2023, the International Criminal Court issued arrest warrants for Vladimir Putin and Maria Lvova-Belova, the Russian Federation’s Commissioner for Children’s Rights. Since the beginning of Russia’s full-scale invasion, the Ukrainian National Police have opened more than 68 000 cases of alleged crimes committed by the invading Russian forces in Ukraine.

This arrest warrant, however, is for the alleged transfer of Ukrainian children from the occupied regions of Donetsk, Luhansk and Zapporizhzhya, and also from Kherson, Kharkiv and Mykolaiev, areas that Russia controlled earlier in the war.

According to the Ukrainian authorities, 16 226 children have been deported to Russia since the beginning of the war. The whereabouts of 10 513 have been traced, and 308 have been returned.

These are mostly children from orphanages, summer camps and boarding schools, but include children who have become separated from their parents during the chaos of the invasion.

The children have been transferred for adoption by Russian families and for their ‘re-education’, according to the Russian authorities, who openly proclaim these intentions on the Kremlin’s official website. The allegations of deportation, however, point to a violation of the Fourth Geneva Convention, and this is where the ICC arrest warrant comes into play.

123 countries have ratified the ICC’s Rome Statute

The ICC, founded in 2002, was established as a permanent institution to investigate and prosecute the most heinous international crimes – the crime of genocide, crimes against humanity and war crimes, when committed after 1 July 2002, as well as the crime of aggression, as of 17 July 2018.

Worldwide, 123 countries are member states of the ICC, having ratified its Rome Statute. The Russian Federation is not a member state, and neither is Ukraine nor the United States. South Africa became a full member in 2002.

Withdrawal from the Rome Statute was initiated in 2016 following a resolution by the African Union encouraging member states to withdraw. The process of withdrawal was reversed after the change in government in 2017, and South Africa remains a full member of the ICC, with all the rights and obligations that accrue to all members of the Rome Statute.

Even though Ukraine is not a member of the ICC, the Prosecutor of the court can initiate an investigation or prosecution if states that are Parties to the Statute of the ICC refer situations to the Prosecutor. So far, the court has received referrals from 43 member states, enabling the Prosecutor to open an investigation.

Furthermore, the Prosecutor is authorised to open an investigation into alleged atrocities that have occurred on the territory of a non-state Party that has consented to the jurisdiction of the ICC, a condition Ukraine has fulfilled in 2014. It is important to note that acting as a head of state or member of government or Parliament does not exempt a person from prosecution by the ICC and from criminal responsibility. Military superiors or commanders may also be held responsible.

Understaffing

An independent organisation, the ICC relies on membership fees and donations for its survival. Over the last ten years, financial constraints have resulted in understaffing, allowing the Court to manage only a handful of prosecutions per year. Upon announcing the investigation into the situation in Ukraine, the Prosecutor had to call for additional budgetary support.

In an extraordinary show of solidarity, 20 member states agreed to commit to financial aid, while 21 confirmed willingness to second national experts.

The ICC is often criticised for its lack of executive or enforcement power. It does not have its own police force to execute warrants, nor does it have the international resources to ensure that defendants appear in court. It depends entirely on member states to arrest and transfer defendants, which often requires considerable political will from a country’s leadership. The situation with non-member states is even trickier.

In this case, the Court benefits from the cooperation of the national authorities and the police force of the country where the fugitive is located. At this point, Russia’s hostility towards the Court precludes any cooperation of this kind as far as evidence collection goes, understandably inside Russia but also in the occupied territories of Ukraine.

The ICC is not recognised by Russia, despite its raison d’être being rooted in the Hague Convention, initiated by tsar Nicholas II in 1898. In response to the arrest warrants, some high-profile Kremlin members and propagandists threatened the ICC headquarters with a nuclear attack.

So, how likely is it that Putin will be arrested in the near future?

The short answer is, not very likely. What is the sense then of issuing an arrest warrant that may very well not be enforced, at least not any time soon?

International courts can have positive effects, despite the enforceability problem. One such effect is that the arrest warrant will certainly inhibit any international travel plans the two accused may have had for the future, as travel will involve risk of arrest.

The ICC is authorised to exercise jurisdiction when a person is deported from the territory of a state which is not a Party to the Statute into the territory of a state which is a Party to the Statute.

This obliges the 123 member states of the ICC to detain and transfer Putin and Lvova-Belova if either sets foot on their territory. (There are counter examples proving the importance of a political will. Omar Al-Bashir, former Sudanese president, was issued with an arrest warrant in 2009, and yet thereafter travelled to nine countries that are signatories of the Rome Statute without being detained, often changing his itinerary at the spur of the moment to avoid his plane being forced down over an ICC member state.)

An international pariah

Besides the dampening effect on international travel, there is the publicity to consider. Grassroots interest in the ICC and the arrest warrant for Putin peaked after the announcement by the ICC on 17 March. Part of this interest translates into many viewing the ICC as a legitimate institution; in the case of Americans remarkably so, given that the US is not a member state.

Another effect of the arrest warrant, resulting from a favourable view of the ICC, is to cement the identity of a defendant, in public opinion, as an international pariah. Putin now finds himself in the company of Jean-Pierre Bemba, Muammar Gaddafi, Omar Al-Bashir and other notorious, high-profile dictators. As far as his future is concerned, he is in a similar position as that of the Chilean dictator Augusto Pinochet, who was arrested in 1998 while visiting the UK for surgery.

Whereas living out their remaining years in peace and quiet in exile was a viable option for culpable dictators before 1998, the number of such persons attempting to do so thereafter dropped to almost zero. As a deterrent, the warrant may also be effective in sending a message to other top bureaucrats and military leaders in the Russian Federation. Therefore, the arrest warrant for Putin has powerful symbolic value, despite lacking practical enforceability, at this point in time. Thomas Warrick of the Atlantic Council states:

This makes South Africa’s position all the more precarious. The government will find it increasingly difficult to hide behind neutrality when international actions such as an arrest warrant for Putin from the International Criminal Court abolish whatever sense of moral impunity may have been perceived to attach to such a position earlier.

It seems true that South Africa has painted itself into a corner, being forced by unfolding events to reveal its hand. The world is watching from a vantage point where, at least as far as the war goes, the ‘middle ground’ is fast disappearing. As Iva Vukusic, assistant professor of history at Utrecht University, explains:

All eyes will especially be on South Africa in August 2023, when the 15th Brics-summit is supposed to take place in Durban. A trip to South Africa, in a show of defiance to the West, cannot be put entirely beyond Putin, in which case South Africa, as an ICC member, would be obliged to arrest him.

Will a similar situation occur as with Omar Al-Bashir’s visit to South Africa in 2015, when domestic courts decided he must be arrested, but with the verdict being reached only after he had left already? There’s also the response of the head of RT channel, Margarita Simonyan, to bear in mind: “I’d like to see the country that arrests Putin according to The Hague’s ruling. Eight minutes later. Or whatever the flight time to its capital is”.

South Africa may again initiate a process of withdrawal from the ICC, which would only hurl the country further down a road leading away from democracy and international acceptance. It seems there are very few options left, least of all ambivalence.

South Africa’s reaction, or inaction, is bound to be interpreted along the lines of the black-or-white colour scheme that Putin’s war has reintroduced into the world of the 21st century.

– Eben Viktor, originally from South Africa is based in Dnipro, Ukraine. He is a freelance writer.

For More News And Analysis About South-Africa Follow Africa-Press

LEAVE A REPLY

Please enter your comment!
Please enter your name here