Heads of state are not immune to prosecution by the International Criminal Court (ICC) for genocide, war crimes, crimes against humanity, and the crime of aggression. These four core international human rights crimes are the worst atrocities that can be perpetrated against innocent people, and the ICC can bring charges for these crimes against individuals who are almost anywhere in the world.

 

The case against Putin. On March 17, 2023, the ICC issued an arrest warrant for Putin for war crimes: individual criminal responsibility for the unlawful deportation and transfer of at least 16,000 children from occupied areas of Ukraine to Russia. 

 

How did the ICC issue this warrant? The ICC's jurisdiction generally extends only to the countries that are parties to the Rome Statute, the treaty that established the court.

 

However, neither Ukraine nor Russia are parties, so it would appear that the ICC lacks jurisdiction over actions in either country.

But according to the ICC statute, the court also has jurisdiction over crimes committed in a state which has accepted its jurisdiction. Ukraine has accepted ICC jurisdiction twice: first in 2014 and then again in 2015.

In addition, 43 states had referred the situation in Ukraine to the court, which formally triggered the ICC’s jurisdiction.

The ICC therefore has jurisdiction over crimes committed on the territory of Ukraine from November 2013 onwards.

The ICC doesn’t conduct trials in absentia. Putin would either have to be handed over by Russia’s government or be arrested outside of Russia. All 123 state parties have the legal obligation to cooperate fully with the court, which means to execute arrest warrants issued by the court, which has no mechanisms to make arrests on its own.

 

ICC Chief Prosecutor Karim Khan was asked if he believed that one day Putin would be in the dock. CNN reported, “Khan pointed to historic trials of Nazi war criminals, former Yugoslavian President Slobodan Milošević, and former Liberian leader Charles Taylor, among others, all once mighty and powerful individuals who found themselves in courtrooms.”

The case against Al-Bashir. The ICC issued two arrest warrants for Sudan’s then-president, Omar Al-Bashir, one in 2009 and the second in 2010. The charges were five counts of war crimes, two counts of crimes against humanity including murder, extermination, and rape, and three counts of genocide.

How did the ICC issue this warrant? Like Russia, Sudan is not a party to the ICC. However, the UN Security Council can refer a case to the ICC, and in 2005 the Security Council asked the ICC to investigate possible war crimes in Darfur.

In the years after the arrest warrants were issued, Al-Bashir traveled to 21 countries on more than 75 trips, seemingly without fear of prosecution. Few countries, including the seven that are signatories to the ICC, had the political will to arrest one of Africa’s longest-serving dictators.

Then, in 2019, Al-Bashir was deposed in a coup and imprisoned in Sudan. Although there was a possibility that he would be transferred to the ICC for trial, that has not yet happened.

It is unclear what his future holds, given the current political upheaval in Sudan.

Putin and Al-Bashir are not immune to prosecution.