The International Criminal Court’s March 17 decision to issue war crimes charges against Russian President Vladimir Putin was shocking in more ways than one. This was the first time in 12 years a head of state has been charged by the international court; in 2011, Libya’s Moammar Gadhafi was indicted on two counts of crimes against humanity for his indiscriminate crackdown on protests. Gadhafi, however, was a tinpot dictator of a small, largely inconsequential North African state — not a major player in the international system ruling one of the world’s largest oil and natural gas producers, with nearly 6,000 nuclear warheads to boot.
Theoretically, every country on the planet now has a choice to make: If Putin happens to set foot on their soil, will they abide by the ICC and formally arrest him, or will they give the Russian strongman a degree of sovereign immunity and allow him to pass through?
For countries in the West, this isn’t much of a question — Germany, for instance, wasted no time reminding people that it would be obligated to hand Putin over to The Hague if he were stupid enough to land on German territory. Others such as South Africa that are state parties to the court but are nonetheless skeptical of its remit may make a different calculation. There was a time not so long ago when South Africa permitted then-Sudanese President Omar al-Bashir, wanted for crimes against humanity in Darfur, to enter and leave the country unhindered.
While the ICC is empowered to issue what amounts to global arrest warrants, it has zero power to apprehend suspects. It relies on the participation of its members to do the enforcing. Yet, as shown in the Bashir case, states aren’t objective observers of transnational justice but entities with multiple priorities, one of which may include holding perpetrators accountable.
There are also a number of states that don’t believe the ICC should have the power to supersede the authority of national courts — the U.S., for instance, has its own troubled, complicated history with the court and strongly believes it has no right to charge its citizens. The ICC indictment, therefore, will complicate Putin’s travel plans, but it’s unlikely he will be brought to the defendant’s box as long as he avoids travel to countries that have signed up to the court’s Rome Statute. (Luckily for Putin, China and Iran, his most important partners, aren’t on the list.)
There are other options for holding Putin accountable, but these are also riddled with procedural complications. The ICC can open a case against a nonstate party if authorized by the United Nations Security Council, which is precisely what happened against Sudan’s Bashir. But Russia is a permanent member of the council, so it can squash those kinds of requests out of self-preservation.
The establishment of a special tribunal, like the one formed to investigate crimes in the former Yugoslavia, is an option as well, although this would also require the type of Security Council authorization that is simply impossible with respect to the Putin case. So-called hybrid courts, in which national authorities work with U.N. assistance to investigate and prosecute offenders, wouldn’t work, either, since most of these are established after a formal request by the state itself. The special tribunal in Sierra Leone, for example, was initiated by the government of Sierra Leone at the time, and the situation was the same for the special tribunal that tackled crimes in Cambodia during the Khmer Rouge regime.
Conceivably, Ukraine could send an official request to the U.N. secretary-general asking for technical, political and legal assistance for its own prosecutions. Ukraine’s Office of the Prosecutor General has vowed to investigate every single one of the 66,000 (and counting) allegations of war crimes that have been reported since Putin launched his invasion in February 2022. However, even this isn’t a foolproof option: If Ukrainian prosecutors were able to tie specific individuals to specific crimes, would they have the capacity to catch those suspects and put them on trial?
Finally, there are diplomatic consequences that need to be considered as well. If Putin is now enemy No. 1 for much of the world, what incentive does he have to wind down the war by negotiating for a settlement? This may sound like a ridiculous question today, when Ukraine and Russia are far, far apart from even exploratory diplomacy. Ukrainian President Volodymyr Zelenskyy wants every inch of Ukrainian land back in Ukrainian hands; Putin wants Kyiv to accept Russia’s illegal annexation of four Ukrainian oblasts in the east. It’s hard to see a middle ground between those two positions.
Yet in the event the war drags on and the combatants get tired enough to at least enter a negotiating process, it doesn’t take a genius to see how the Putin indictment could be an obstacle to a hypothetical settlement. Would Putin end the war knowing he would still be an international fugitive, or would he use the ICC case against him as leverage? If Putin takes the latter course, would Ukraine and its backers in the U.S. and Europe be willing to suspend or drop the case for the sake of reaching a peace agreement?
Is justice more important than peace, or is peace more important than justice? Is there a way to have both? These are academic questions today but may be practical ones tomorrow.
We all would like to live in a world where the most serial offenders are held accountable for their actions. However, the real world has a habit of throwing wrenches into the works. The ICC’s prosecution against Putin is no exception.
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ABOUT THE WRITER
Daniel DePetris is a fellow at Defense Priorities and a foreign affairs columnist.
