Warrant of merit: Implications of Hague Tribunal decisions for Putin, propagandists, and the military

This article has been published on the Re:Russia platform. The Insider quotes it in full with the publication's permission.

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We are currently witnessing a true historical precedent. This currently resembles the Indian parable about the elephant being groped by the blind men. Lawyers can see that a crime may have been committed here, as well as the potential perpetrators, and thus identify it as a legal conflict. Politicians, on the other hand, see this primarily as a political process. Journalists and the general public interpret it as a high-profile story, simplifying and primitivizing it, whether consciously or unconsciously. Thus, we are faced with a highly complicated legal and political process that has been transformed into a high-profile story.

Nothing like this has ever happened before. Yes, some heads of state have been prosecuted for crimes, both at home and abroad, but these countries were never major global powers nor were they permanent members of the United Nations Security Council. And, moreover, none of those countries were victorious in World War II or founding members of the current global order. None of these perpetrators came from a country that was a founding member of the United Nations, the body that oversees all international criminal prosecutions and established all international criminal courts and tribunals.

Court versus tribunal: what is the difference?

Ukrainians demand a tribunal. For Putin or for Russia. They are, quite reasonably, seeking the prosecution of the Russian authorities for aggression, invasion, and occupation.

It is crucial to understand that a tribunal is typically a trial in connection with specific events, an ad hoc process, a single-use system created specifically for that particular case. The Nuremberg Tribunal, for example, was a trial that focused on specific events and the responsibilities of a small group of people from a single country. A court, on the other hand, is a permanent institution that deals with specific categories of cases regardless of who committed the crime, where, when, or how it took place. This is the distinction between a tribunal and a court. (For the sake of fairness, there are certain exceptions: for example, there is the permanent International Tribunal for the Law of the Sea and the Special Court for Sierra Leone that deals with those specific events).

It is profoundly wrong to compare current events with those of the Nuremberg trials and as such it would be wrong to return to its practices. The historical gap between the two is immense. The Nuremberg Tribunal can only be viewed as a precursor to modern international criminal proceedings. The Yalta Conference, held from February 4 to 11, 1945, was where the final political decisions about its establishment were made. Its Charter was adopted in August 1945 at the London Conference. There was no UN at that time, so the tribunal was founded primarily on the basis of previously adopted international conventions regulating methods of warfare.

Ad hoc tribunals were also established for the events in the former Yugoslavia and Rwanda. But then the idea of a permanent court emerged. The International Criminal Court was not established to deal with specific cases, but rather with a broad category of crimes, the most serious and difficult to prosecute. We are now in a different historical context.

The establishment of a special tribunal for Russia will not enhance the role of the International Criminal Court or boost its international recognition. It would serve as a tool for the legal assessment of Russia's actions in Ukraine over a certain period. This scenario may seem preferable to countries that are not interested in strengthening the ICC, and who fear that it would lead to charges against them. Take, for example, the United States, which not only refused to ratify the ICC treaty but also sanctioned the prosecutors investigating American military crimes in Afghanistan.

However, the ICC is heavily invested in this. The investigation into Russia is the organization's first global challenge and test of its viability in its 20-year history. For the ICC, the choice is whether to become one of the major international organizations, a kind of ‘global guardian,’ or to be content with dealing with petty dictators (this does not diminish the gravity of their crimes or the importance of the countries they come from).

The issue of jurisdiction

Many people are reasonably concerned with the issue of whether the International Criminal Court has jurisdiction in this particular case. This will be decided definitively if and when someone is brought to trial.

Let us start with what exactly the ICC is. It is an international criminal court, created by the United Nations, with the ability to investigate and try defendants in four categories of the most heinous crimes: crimes of aggression, crimes of genocide, crimes against humanity, and war crimes.

Ukraine, like Russia, has not ratified the Rome Statute, which established the International Criminal Court. But, through a special procedure (which took place in 2015), Kyiv acknowledged the ICC's jurisdiction, expressing its desire for the court to investigate international crimes committed on Ukrainian territory. As a result, the ICC believes it has the authority to hear cases relating to the Russian-Ukrainian conflict.

There are, however, other points of view regarding the jurisdiction of the ICC, and these views are obviously held by the Kremlin. Russia signed the Rome Statute in 2000 but has not ratified it, instead cooperating with the ICC as an observer. Putin withdrew his signature in 2016, signing an order which stated Russia's intention not to become a party to the Rome Statute. During the Malaysian Airlines Boeing case, the separatists’ defense team Netherlands argued that the court lacked jurisdiction. However, the court explained why this was not the case. So-called jurisdiction is not a matter of course for a Dutch court over criminal acts that took place outside the Netherlands. But, since flight MH17 was shot down over Ukraine and Ukraine transferred the resulting right of prosecution to the Netherlands, for that reason alone the Netherlands had jurisdiction in this case. This means that prosecution in the Netherlands is possible regardless of the nationality of the victims.

In the case of the Russian-Ukrainian war, the court will also need to justify why it has jurisdiction. And, this is essential in understanding this process not as a political process, but as a legal one.

The crux of the allegations: facts and evidence

The International Criminal Court was established 20 years ago, with all of the types of crimes under its jurisdiction listed in the Rome Statute, which came into force in 2002. In general, the fact of its existence acts as a warning to everyone: it is illegal to take children from one country and transport them to another during an armed conflict, to cut children off from their parents, and to deprive children of their individual identity. This is spelled out by both the 1949 Fourth Geneva Convention on the Protection of Civilian Persons in Time of War and the UN Convention on the Rights of the Child. Both of these documents are recognized by Russia.

The first states:

The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any.

At the same time, the same convention considers the forcible displacement and deportation of civilians as a separate crime:

1. The perpetrator ordered a displacement of a civilian population
2. The order was not justified by the security of the civilians concerned or by military necessity.
3. The perpetrator was in a position to cause the displacement by giving the order.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character;
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

There is a further article on ‘Genocide through forcible transfer of children’:

1. The perpetrator forcibly transferred one or more persons
2. Such person or persons belonged to a particular national, ethnic, racial, or religious group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnic, racial, or religious group, as such.
4. The transfer was from that group to another group.
5. The person or persons were under the age of 18 years.
6. The perpetrator was aware that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction
7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

It is up to the court to decide whether or not all of this occurred. However, the prosecutor has deemed there to be sufficient grounds for such charges to be brought. The fact that thousands of Ukrainian children have been taken to Russia has been directly confirmed by senior Russian officials. Whether they were motivated by security concerns or something else, whether the removal was temporary or they intended for the children to remain in Russia, whether their identity was preserved (citizenship, birthplace, and parental documents, for example) or not — these are all circumstances that must be proven in court.

The second confirmed fact in this case is the destruction of civilian infrastructure. The Russian Ministry of Defence claims that it does not strike civilian targets. Bombardment of the energy infrastructure is justified on the grounds of its military purpose, and they justify the destruction of civilian buildings by the presence of enemy troops or by the actions of the enemy himself. Whether or not any of this is true is also a matter to be proved in court. Therefore, the International Criminal Court has focused on these two most emblematic cases.

The ICC has been gathering a body of evidence of various crimes related to the armed conflict for a year. Whether Russian servicemen have carried out rapes, killings of civilians, torture, extrajudicial executions in Ukraine — all this has yet to be proven or disproved. However, the arrest warrants issued for Putin and Children’s Ombudsman Maria Lvova-Belova will clearly not be the last.

It is significant that the ICC is unable to view Russia's war in Ukraine as an act of aggression. The Rome Statute forbids the ICC from doing so. It requires that the crime of aggression be committed by a country that has recognized the jurisdiction of the court and that it be committed against a country that has also recognized the court's authority. That is, if the Germans were to take Strasbourg or Alsace again, the ICC could deem it an act of aggression.

Many in Ukraine want the issue of genocide to be the subject of the tribunal. However, the issue of genocide is an even more complicated matter: it necessitates proof of specific intent, which is difficult to obtain. Genocide is defined as the intentional total or partial annihilation of a national, racial, or religious group. In the last 30 years, only two cases have been recognized as genocide by international justice: Srebrenica in Yugoslavia and Rwanda in 1994. With regard to the Russian-Ukrainian war, such recognition cannot be completely ruled out, especially while the conflict is still ongoing. However, it will be much more difficult to obtain such recognition.

'Virtual arrest' and its consequences

The main obstacle is that a trial will only take place in the event that someone is arrested. And here we are faced with a paradox. A warrant has been issued for the arrest of two representatives of the Russian government, but when and how can and should they be apprehended? Will this happen, or not?

For example, Slobodan Milošević was arrested in Serbia, and his trial was scheduled to take place there for a long time. It was only later, apparently as a result of external pressure, that he was transferred to The Hague. Omar al-Bashir, Sudan's president, was arrested in 2019 following a coup and has remained in Sudan ever since, where he was sentenced to two years in prison for possession of foreign currency (!), and is still awaiting a decision on his extradition to The Hague.

An intriguing nuance: as previously stated, the United States has not ratified the treaty on the establishment of the International Criminal Court, and the warrant is only valid on the territory of those countries that have ratified the treaty. In essence, the United States is under no obligation to extradite someone whose arrest warrant has been issued by the International Criminal Court. But, no one can stop the US law enforcement agencies from making an arrest, for example, after the ICC has filed a search card with Interpol (in the case of Putin and Lvova-Belova, this is likely to happen soon). A separate issue is how Interpol will react to this and whether Putin and Lvova-Belova will appear in its open database.

Omar al-Bashir, who was listed by the International Criminal Court even before the coup, was planning to attend the UN General Assembly session in New York and had even applied for an American visa. The Americans are required to issue visas to heads of state attending UN events, but they purposefully delayed the process, causing al-Bashir to cancel his trip. Clearly, the threat of arrest was present; he was aware of this and expected assurances to be made. For example, they made an exception for Nelson Mandela, who was wanted in the US for apartheid-era terrorist attacks. In 1994, he was granted a visa and allowed to attend the United Nations General Assembly.

Xi Jinping publicly invited Putin to visit China immediately following the ICC's announcement. At least two permanent members of the UN Security Council appear to be ignoring ICC warrants, which undermines the organization's credibility. When we consider the White House's policy alongside this, which also treats the ICC with little regard, it appears that only Britain and France remain steadfast supporters of the Security Council, a minority even among the five permanent members.

In other words, prospects for an international investigation are de facto dependent on the relationships between states, and thus they take on a political dimension. At the same time, the issuance of the arrest warrant may force countries to reconsider their position in relation to the ICC, which is why the warrant is so significant.

The arrest warrant might be withdrawn. No such precedent has been established, but as previously stated, this situation is itself unprecedented. Finally, it is possible that Vladimir Putin's international lawyers did not adequately advise him on what might be permissible and unacceptable. So far, however, we have seen no willingness on the part of the Kremlin to cooperate with the ICC, as well as no desire to explain, demonstrate, or prove their case. However, it is abundantly clear that the return of the Ukrainian children could help to alleviate the situation.

Of course, from a legal standpoint, legitimate defense of victims of persecution by international justice bodies is only possible through the judicial process. However, in the current situation, it is also possible to defend oneself by political means. Among other things, the children can be returned, damages can be compensated for, negotiations can begin, and, ultimately, hostilities can be terminated at any time.

Who will be judged? Leaders, perpetrators, and organizers

In international courts and tribunals, prosecution must begin with those in positions of power, i.e., the leaders. However, this does not mean that those who pulled the trigger, plundered, and raped while following orders will go unpunished.

The Rome statute expressly states this in Article 33, ‘Superior orders and prescription of law’:

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
   
   (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
   
   (b) The person did not know that the order was unlawful; and
   
   (c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

A few dozen people were prosecuted at Nuremberg, but thousands of Germans underwent a programme of denazification, over the course of many years, on charges of being involved in the same crimes. In other words, the ordinary national judicial system was also involved.
This is what happened with the prosecution of crimes in Yugoslavia: the courts in Serbia also tried people accused of various war crimes. And this was even more the case in Rwanda, where hundreds of thousands of people were prosecuted by the national courts. Moreover, courts of elders were specifically created for this purpose, and a huge number of Hutus who participated in the Tutsi genocide passed through these trials. The international tribunal did not deal with all of these cases.

Obviously, it will not be the task of international investigations to deal with the crimes committed by thousands of Russian servicemen, or even hundreds of them. They may be punished, but this is likely to be in some other context and by some other institution. However, such instances will rely on the decisions of the ICC.

For example, it may be that, in the future, war criminals will be prosecuted by Russian courts. This assumes a change of political regime in Russia, and much will depend on the position of any new government: will they prefer to continue Russia along a path of isolation and global marginalisation, or will they launch internal processes to reassess the historical events that have taken place in Ukraine since 2014?

However, it is also possible that the ICC may be forced to limit itself to the prosecution of smaller figures if it is unable to prosecute the leadership.

Some are already being prosecuted in Ukraine. And, it is possible that they will be prosecuted in other countries on the basis of the principle of universal jurisdiction. If one of the suspects travels, for example, to Italy or Spain, they could be detained there and tried for the crimes that they committed in Ukraine. This is also a possibility. But any international investigation will focus primarily on the leaders.

Another subtle aspect of the crimes committed in Ukraine concerns the mercenaries of Wagner PMC. The international court may not recognise these as combatants. This means that they will not be subject to the rights of combatants. If members of the two armies fight each other, wear uniforms, insignia, and comply with the rules and methods of warfare, they cannot be tried for killing each other. But if they are not recognised as combatants, then they have no right to bear arms or to shoot anyone, in which case they are subject to criminal prosecution for the mere fact that they participated in hostilities.

Of course, if there is evidence that private military companies exist as structural subdivisions of the Ministry of Defence of the Russian Federation, such as a corresponding order from the Ministry of Defence or the head of the General Staff, this will change the matter. But so far, from a legal point of view, there is no evidence of this; these conditional volunteers do not have the rights of servicemen under Russian law either. The international court will consider, among other things, whether they were military servicemen under Russian law, and whether they were entitled to things such as vacations and relevant payments.

The International Criminal Court, as well as any potential tribunal, will examine the preconditions for the emergence of aggression as a matter of necessity. For instance, the Hague Court, which heard the Malaysian Boeing case, covered in great detail, on several pages, the preconditions for the conflict in eastern Ukraine in 2014, ‘separatists’, ‘LDPR’, and so on. The court will assess the entire conflict in this manner.

But in the case of propagandists who have been inflaming Russian hatred with an anti-Ukrainian agenda for years, we can only speculate and base our thinking on a single analogy — that of the infamous ‘Free Radio and Television of a Thousand Hills’ in Rwanda. This Rwandan station never explicitly called for the genocide of the Tutsi, instead using hints and suggestions, urging the general Hutu audience to ‘cut down those tall trees’ and ‘destroy those cockroaches’. This resulted in the Hutus actually chopping Tutsis with machetes.

During the Rwandan genocide tribunal, specific words and texts were analysed, and the radio's popularity was also considered. If it had been a radio that barely anyone listened to, there would have been no legal object. Its popularity became the absolute proof of guilt.

How does this example differ from the present situation? The propaganda appeals in Rwanda were accompanied by mass spontaneous massacres, in fact, the radio acted as their initiator, their organiser. ‘Thousand Hills Radio’ was, moreover, commercial, with no affiliation to the state (incidentally, this fact left its mark on the subsequent attitudes towards media in Rwanda. All non-state media since then has been under strict control, experiencing constant pressure from the regulatory body). In the Russian-Ukrainian case, there is no such direct connection between propaganda and military action, and there is no such logic, because the war is conducted by servicemen, who obey the orders of their commanders, not the instructions of radio hosts.

There are no other similar examples, which means that the International Criminal Court will have to create a precedent. The role of Russian propaganda requires a thorough legal analysis, because this precedent could then be used against other journalists, for instance war correspondents.