Date : 22/07/2023

Relevance – GS Paper 2 – International Relations, International Organizations

Keywords – BRICS, Rome Statute, UNSC, UNGA

Context –

Russian President Vladimir Putin has decided not to attend the upcoming BRICS summit in South Africa. BRICS is a group that includes Brazil, Russia, India, China, and South Africa, representing a significant portion of the world's population, GDP, and trade.

This decision by President Putin has resolved a challenging situation for South Africa. The country, being the host of the BRICS summit this year, would have faced a theoretical obligation to arrest Putin due to an International Criminal Court (ICC) warrant issued against him in March 2023 for alleged war crimes.

Background –

In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin on charges of war crimes, specifically the alleged unlawful deportation of more than 16,000 Ukrainian children to Russia since the invasion of Ukraine on February 24, 2022.

This arrest warrant created a difficult situation for South Africa, as the country is a member of the ICC and is set to assume the chairmanship of BRICS (Brazil, Russia, India, China, South Africa) this year. As the host of the BRICS summit scheduled for August, South Africa would typically expect all member state leaders, including President Putin, to attend in person.

However, given the ICC's arrest warrant for Putin, South Africa faced a dilemma. As an ICC member, it is theoretically obligated to execute the arrest warrant if Putin were to enter its jurisdiction. Arresting a sitting head of state could have significant diplomatic and geopolitical implications, potentially leading to heightened tensions and complicating efforts to end the ongoing conflict in Ukraine.

To navigate this situation, South Africa previously sought an exemption from its obligation to arrest Putin, arguing that apprehending him could be perceived as a declaration of war and might undermine the peace efforts in Ukraine.

As a resolution to this complex scenario, President Putin decided not to attend the BRICS summit in person. Instead, he opted to participate through video conferencing, thus avoiding the potential legal and diplomatic challenges associated with his physical presence in South Africa.

International Criminal Court (ICC)

What is the ICC?

The International Criminal Court (ICC) is a permanent institution established to prosecute individuals for serious international crimes. These crimes include genocide, war crimes, crimes against humanity, and aggression. The court's main purpose is to combat global impunity and ensure that individuals, regardless of their position or status, can be held accountable under international law.

Unlike the United Nations' International Court of Justice, which is also located in The Hague, Netherlands, the ICC focuses specifically on prosecuting individuals for international crimes.

The ICC's founding treaty, known as the Rome Statute, was adopted by the UN General Assembly in 1998 in Rome, Italy. It became functional in 2002, after countries signed and ratified the statute through their respective legislatures to become members or State parties to the ICC. Currently, there are 123 member countries, with African nations forming the largest bloc. Notably, some countries like India, China, Iraq, North Korea, and Turkey never signed the Rome Statute, while others, including the United States, Russia, Israel, and Syria, signed but never ratified it.

How does the ICC function?

The International Criminal Court (ICC) operates with 18 judges and prosecutors who hold non-renewable nine-year terms. The court's proceedings involve three benches: pre-trial, trial, and appellate.

The investigative process begins with the Office of the Prosecutor conducting a preliminary examination to determine if there is a basis for proceeding. To open a full investigation, the prosecutor seeks permission from the pre-trial judges. For this to happen, the initial examination must conclude that the alleged crimes are of sufficient gravity.

The ICC can open investigations in three ways:

1. When a member country refers a case that falls within its own territory.
2. When a case is referred by the UN Security Council.
3. When the prosecutor initiates an investigation proprio motu, meaning on his or her own accord.

Non-member states can also be subject to ICC investigations under three conditions:

1. If alleged crimes were committed by non-members in the territory of member states.
2. If non-member states voluntarily accept the court's jurisdiction.
3. If the UN Security Council authorizes an investigation involving a non-member state.

Does the ICC have the authority to prosecute President Putin?

Russia, the United States, China, and India are not among the 123 States Parties to the Rome Statute, which means they do not recognize the authority of the International Criminal Court (ICC). The ICC's jurisdiction is limited to crimes committed after its establishment on July 1, 2002, in countries that have ratified the Rome Statute or by nationals of those countries.

Ukraine is also not a State Party to the Rome Statute. However, in 2014, Ukraine accepted the ICC's jurisdiction over alleged crimes committed on its territory from November 21, 2013, to February 22, 2014. Furthermore, in 2015, Ukraine extended its acceptance to the ICC's jurisdiction from February 20, 2014, onwards, without specifying an end date. This voluntary acceptance allowed the ICC to investigate and potentially prosecute crimes committed on Ukrainian territory during those periods.

It is important to note that the ICC's jurisdiction relies on the consent of the State Parties and does not automatically extend to non-member states, unless specific cases meet the criteria outlined in the Rome Statute or are referred by the UN Security Council. As such, countries like Russia, the United States, China, and India fall outside the ICC's jurisdiction due to their non-membership status.

Is there a risk of arrest for Putin outside Russia?

The ICC's arrest warrant for President Vladimir Putin would only be applicable if he were to travel to a country that is a member of the ICC, such as South Africa, where the court's jurisdiction would be in effect. However, this scenario is theoretical and has not occurred.

It is noteworthy that this is the first time the ICC has issued an arrest warrant against the head of one of the five permanent members of the United Nations Security Council. The only other leaders who have faced ICC indictments while serving as head of state are former President Omar al-Bashir of Sudan and the late Muammar Gaddafi of Libya. These instances demonstrate the exceptional nature of such legal actions taken against high-ranking political figures.

Conclusion –

In conclusion, the ICC's issuance of an arrest warrant against Russian President Vladimir Putin marks a significant step in promoting accountability for alleged war crimes. It demonstrates the ICC's commitment to upholding international law and ensuring that even high-ranking leaders can be held responsible for their actions. South Africa's handling of the situation as the host of the BRICS summit showcases its diplomatic prowess in navigating complex international relations.

This development serves as a reminder of the importance of global cooperation in pursuing justice and addressing serious international crimes. The willingness of Ukraine to accept the ICC's jurisdiction further emphasizes the commitment of some nations to support the pursuit of justice on the international stage.

While challenging, the situation highlights the delicate balance between international justice and diplomatic relations. It prompts further discussions on how to effectively address alleged atrocities while fostering constructive dialogue among nations.

Source – The Hindu