Guest post by Jacqueline R. McAllister and Daniel Krcmaric
The International Criminal Court (ICC) shocked the world on March 17 by issuing arrest warrants for Russian President Vladimir Putin and his Commissioner for Childrenโs Rights, Maria Lvova-Belova. The ICC indicated it has reasonable grounds to believe that each bears criminal responsibility for unlawfully deporting and transferring children from occupied Ukraine to Russiaโconsidered war crimes under international law. Rather than starting its ongoing investigation in Ukraine with arrest warrants for โsmall fryโ war criminals, the ICC rolled the dice by going after its most prominent target ever: Vladimir Putin. Often considered the โmost powerful man in the world,โ Putin is the first leader with a permanent seat on the United Nations Security Councilโand the first leader with an arsenal of nuclear weaponsโto face an ICC arrest warrant.
What does all of this mean going forward? And how will the ICC arrest warrants influence the war in Ukraine?
It is important to start by managing expectations: Neither Putin nor Lvova-Belova is likely to land in the ICCโs dock anytime soon. Since the ICC does not have a police force, it relies on state cooperation for enforcement. Russia refuses to recognize the ICC, and it is inconceivable that Putin and Lvova-Belova will voluntarily turn themselves into the court. The road ahead for securing justice will be bumpy.
Nonetheless, the ICCโs arrest warrants may have several implications for the war, some negative, some positive.
In terms of negative implications, the ICC arrest warrants are unlikely to deter Russian forces from continuing to commit atrocities in Ukraine. In fact, they may perversely convince Russians to double down on their atrocity crimes. This may already be happening in Ukraine. During his surprise visit to Russian-occupied Mariupol after the warrants were announced, Putin thumbed his nose at the ICC by visiting a childrenโs center. Other Russian authorities have responded to the ICC arrest warrants by signaling that โmore deportations are on the way.โ Ukrainian civiliansโthe very people who have already borne the brunt of the warโmay continue to suffer as their children are abducted and put on display in Red Square photo-ops and at concerts celebrating the war.
The ICC arrest warrants are also likely to make it harder for Ukraine and its Western allies to reach a negotiated settlement with Russia. The logistics of negotiating peace are more complex now that Putin is in the ICCโs sights. Will leaders in Western democracies be willing to negotiate directly with an accused war criminal? Might they insist that Putin be removedโas they did for other brutal leadersโas a precondition for meaningful negotiations? Will Putin be willing to travel abroad for a prospective peace conference? The ICCโs 123 member states now have a legal obligation to arrest him if he ever sets foot on their territory, making them undesirable sites for a peace conference. It is possible that China, fresh off its role in brokering a deal between Iran and Saudi Arabia, could play host. But Chinaโs actions thus far have convinced Western officials that it would not be a neutral broker in Ukraine.
There are some positive implications, however. The arrest warrants could facilitate efforts to hold Putin and other top leaders criminally accountable. For example, following Serbian leader Slobodan Miloลกeviฤโs indictment at the Yugoslav Tribunal, several of his key associates began sharing a wealth of much-needed evidence. As Yugoslav Tribunal Deputy Prosecutor Graham Blewitt explained in an interview with one of the authors, โMiloลกeviฤ opened up other areas of interest. Once he was indicted for Kosovo, we could then bring indictments for Bosnia and Croatia, because people talked to us. Some people were trying to do the right thing, and some people wanted to do deals.โ In conjunction with military intelligence from Western governments, such testimony and documents linking top leaders to crimes proved crucial for prosecuting those who were previously beyond the Yugoslav Tribunalโs reach. It is possible that some in Putinโs inner circle could end up doing the same for the ICC.
If history is any indication, the ICCโs arrest warrants may also shore up support for Ukraineโs war effort, particularly from NATO. During the Kosovo War, the Yugoslav Tribunalโs indictment of Miloลกeviฤ helped to solidify support for NATOโs Operation Allied Force in Kosovo. Specifically, as NATOโs air campaign ground on with seemingly no end in sight, pressure mounted in Western capitals to bring hostilities to a close. In the face of such pressure, keeping the Alliance together posed a real challenge. The Miloลกeviฤ indictment, according to NATO Supreme Allied Commander Wesley Clark, was โa huge win. Nothing was more likely to stiffen the Alliesโ resolve and push us forward into a winning situation than this indictment.โย
Since Russiaโs invasion of Ukraine over a year ago, questions have persisted about whether NATO, the US, and European Union will sustain their crucial support for Ukraineโs war effort over the long haul. Indeed, Putin seems to be gambling that Ukraineโs supporters will eventually falter in their commitment to its cause. If NATOโs experience in Kosovo is any indication, the ICCโs arrest warrants might help Ukraineโs backers to keep calling Putinโs bluff.
Jacqueline R. McAllister is an Associate Professor of Political Science at Kenyon College and will join the State Departmentโs Office of Global Criminal Justice in 2023 as a Council on Foreign Relations fellow.ย Her research appears in leading scholarly and foreign affairs magazines.ย Daniel Krcmaric is an Associate Professor of Political Science at Northwestern University and the author of The Justice Dilemma: Leaders and Exile in an Era of Accountability. He is currently writing a book about the turbulent relationship between the United States and the International Criminal Court.