The pointlessness of prosecuting Putin

The International Criminal Court (ICC) has decided to charge Russian president Vladimir Putin, alongside Russia’s children’s rights commissioner, Maria Alekseyevna Lvova-Belova, with a war crime. The ICC alleges that Putin is responsible for the forced deportation of thousands of Ukrainian children to Russia. The Kremlin denies the allegation, and claims it has been rescuing orphans and abandoned children from a war zone.

Now you don’t have to be a fully signed-up member of the Vladimir Putin fan club to think there’s something a little off about the ICC’s move. There is more than a whiff of a PR stunt about it. The ICC seems to have issued this arrest warrant, for the sitting head of a permanent member of the UN Security Council no less, in the full knowledge that it will not be acted upon. It feels like an attempt to grab headlines, like a ruse to justify the ICC’s near €150million-a-year existence. Indeed, it’s probably no coincidence that the ICC is currently begging for €30million in extra funding from its main state backers, France, Germany and the UK.

The ICC knows that issuing an arrest warrant for Putin will play well with the West. And it knows nothing will come of it.

For a start, Russia does not recognise the remit of the ICC – it signed the ICC’s founding treaty, the Rome Statute, in 2000, but never ratified it and formally withdrew in 2016. As Kremlin spokesperson Dmitry Peskov put it over the weekend, Russia doesn’t accept the ‘jurisdiction of this court and, consequently, any such decision is void for Russia from a legal point of view’. In other words, the arrest warrant is utterly meaningless.

And even if, at some point in the future, Putin were to travel to one of the 123 nation states that do recognise the remit of the ICC, they still don’t actually have to arrest him. Indeed, the ICC has issued countless other warrants in the past that have been ignored by ICC members. In 2016, for instance, Sudanese president Omar al-Bashir, indicted in 2009 for alleged war crimes in Darfur, happily attended an African Union summit hosted by ICC member South Africa before leaving a free man still. The idea that Putin will be arrested and will actually stand trial at the Hague seems fanciful at best.

The wilful futility of the gesture hasn’t stopped Western leaders from hailing it as some sort of victory for justice. Germany’s chancellor, Olaf Scholz, said that it showed ‘nobody is above the law’. And US president Joe Biden said the warrant was ‘justified’ and made ‘a very strong point’.

This might be easier to take seriously if the US itself hadn’t also refused to recognise the jurisdiction of the ICC. Like Russia, the US signed the Rome Statute in 2000, before then refusing to ratify it. At the time, President George W Bush was concerned that it put US officials and soldiers at risk of arbitrary prosecution by anti-US prosecutors.

Subsequent US administrations have shared Bush’s concern. As a result, the US has been involved in a low-level stand-off with the ICC over the past two decades, with a few ICC prosecutors circling, vulture-like, around the US’s high-profile military adventures in Iraq and Afghanistan. In 2017, after the ICC tried to open an investigation into alleged war crimes in Afghanistan, the Trump administration retaliated by imposing sanctions on ICC prosecutor Fatou Bensouda and another court official. The ICC investigation was subsequently suspended.

That the ICC even contemplated trying to bring charges against US officials and servicemen came as a bit of a surprise. Since 2000, the ICC has indicted over 40 individuals, and all without exception have been from Africa. Given the numerous other bloody conflicts around the world involving Western powers, the ICC’s obsession with prosecuting individuals from Rwanda, Uganda, Sierra Leone and Sudan has led to understandable accusations of racism and Eurocentrism. In 2000, British foreign secretary Robin Cook, speaking of the ICC’s prototype in the Hague, the International Criminal Tribunal for Yugoslavia, even admitted that ‘this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States’.

So the ICC has never been a seat of universal justice. No, it has always been partial and selective in its decisions about who to prosecute. Which is to be expected. Established and backed mainly by Western powers (the US excepted) during the high-tide of humanitarian interventionism, the ICC has tended to reflect their interests – and, of course, their desire to project and demonstrate their sense of moral superiority over the rest of the world. No wonder so many major nations, from Russia and the US to China and India, have long refused to recognise its authority. They see the ICC’s claim to sovereignty, its arrogant assumption of prosecutorial power over the citizens of every nation, as a threat to their own nation’s sovereignty, their own nation’s rule of law.

And here we come to the main problem with the ICC’s absurd attempt to arrest and try Putin. By assuming the power to hold Putin to account – to try him; to punish him – if the ICC got its wishes, it would effectively deprive the people of Ukraine and Russia of their own ability to hold Putin to account. It diminishes them, overrides them. It treats Putin and the war in Ukraine more broadly as a problem best solved by legal experts in the Hague. Now ‘the process of accountability’ can begin, said EU foreign-policy chief Josep Borrell. As if the partial, biased ICC is better placed to judge the rights and wrongs of this terrible conflict than those directly involved in and affected by it.

But the ICC is not better placed to judge. If any justice is to be meted out to Putin, it shouldn’t come from ICC prosecutors. It should come at the hands of Russian and Ukrainian people themselves. It should come at the hands of those whose lives his war has turned upside down. Now that would be justice.

Tim Black is a spiked columnist.