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Legal expert: ICC warrant unlikely to lead to Putin arrest any time soon

Lauri Mälksoo on Monday's edition of 'Terevisioon', March 20, 2023.
Lauri Mälksoo on Monday's edition of 'Terevisioon', March 20, 2023. Source: Vladislava Snurnikova/ERR

There is no reason to expect that the arrest warrant for Russian leader Vladimir Putin issued by the International Criminal Court (ICC) last week will be immediately followed by his actual arrest, professor of international law Lauri Mälksoo says.

On Friday, the International Criminal Court issued a warrant for Putin's arrest. The Russian leader is accused of

The ICC issued an arrest warrant for Putin last Friday. The Russian leader stands charged with the crime of deporting children from the occupied territories in Ukraine, to the occupying country, ie. Russia.

Appearing on ETV morning show "Terevisioon" Monday, Mälksoo said: "There are many interesting points here, one of which is why the ICC picked this particular crime."

"My view is that that one of these points is that they wanted to go all the way to the top, and not limit themselves to he first arrest warrant pertaining to some middle-ranking military leaders in Bucha or Mariupol," Mälksoo continued.

At the same time, Mälksoo, cautioned, an imminent arrest of Putin should not be expected, adding that it doesn't quite work like that.

"Some say tentatively that with this step, the ICC is taking on a major responsibility in the sense that if it is still not viable to make an arrest in the next few years, while he continues to do what he is doing, then on the one hand a very strong signal would have been sent, but on the other hand, any continued non-response to the arrest warrant for any length of time does not speak for the ICC's authority.

Mälksoo said that the charge constitutes a political crime, with video and a text recording, i.e. evidence, where the view is expressed that this was a national policy that is being carried out and which the Kremlin considers to be correct.

"They themselves talk about the situation in a completely different way - as a humanitarian act, whereby they take children away from the front line. But the ICC position is that international humanitarian law applies here. The definition of war crimes derives from the Geneva Conventions, the Red Cross Conventions of 1949, which are also binding on Russia. Russia has given its consent, to define these things in this way," said the professor of international law.

The biggest question concerns the nature of the aggression itself, Mälksoo added: A war crime can only be committed after a political leadership has decided in favor of a military solution. The genesis of war crimes, political crimes and genocide is aggression, Mälksoo went on.

The problem is such that due to the ICC's statute, it is more difficult for the court to claim jurisdiction over a crime of aggression, i.e. it does not have the competence to do so, he added.

"In the course of the legal process, nothing gets clarified until the defense has been able to present its assessments. In this sense, everything must be done on the basis of the law. The court must have jurisdiction and things must be based on the definitions of crimes within the context of international criminal law," he said.

Since Russia is not a member of the ICC, it is natural authorities there would say that the court has no scope to carry out anything against any of its citizens, leave alone the head of state, Mälksoo added.

"However, in this case, the same ICC derives mainly from the fact that Ukraine, the other party to the conflict, has unilaterally handed the ICC that competence, to deal with this matter, while these events took place on the territory of occupied Ukraine," Mälksoo added.

Since the 1940s, whether heads of state really have immunity to the extent that nothing can be done against them legally, even if they commit crimes of aggression or war, has been a point of contention in international law, Mälksoo said.

"In fact, the prevailing opinion in recent years has been that this may apply to an incumbent head of state, though not when they are no longer in office," the professor said. 

"In this sense, the key significance of the current ICC step in terms of jurisprudence is that they have dared to issue an arrest warrant against a sitting head of state," he went on.

The ICC has 123 members worldwide, all of whom have an obligation to cooperate with this court, Mälksoo said.

In terms of impact of the decision on Putin's life, Mälksoo said that in respect of future foreign policy steps, whether Putin can visit a given state will remain an issue. 

For example, Putin visited ICC member state Tajikistan last year, and a G20 summit is set for later this year in ICC member state South Africa.

Russia is a G20 member.

"For the rest of [Putin's] time in power, it most likely won't transpire that he travels somewhere abroad and, no doubt to his own huge surprise, he will be arrested. Instead, we are talking about how this arrest warrant will affect future power relations and how the perception of this conflict will pan out worldwide," Mälksoo continued.

Former Yugoslav leader Slobodan Milošević was tried at The Hague, but not by the ICC, rather by the International Criminal Tribunal for the former Yugoslavia, a UN body.

The ICC is also headquartered in The Hague; past war crimes trials heard by the ICC include those of Thomas Lubanga and Germain Katanga, sentenced a little over a decade ago to 14 and 12 years imprisonment in respect of war crimes committed in the Democratic Republic of the Congo.

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Editor: Andrew Whyte, Karin Koppel.

Source: 'Terevisioon', interviewer: Anna Pihl.

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