Sandrine de Sena : This is undoubtedly a historic moment for international criminal justice. We are here facing the first arrest warrant once morest the leader of a permanent member state of the United Nations Security Council. We are also here faced with an indictment for specific war crimes, the deportation and the illegal transfer of Ukrainian children to Russia. The timing is also not, I believe, trivial. Two days ago, the United Nations International Commission of Inquiry highlighted the emblematic nature of these crimes. Vladimir Putin and the Russian Commissioner for the Rights of the Child are also individually prosecuted as highs responsible. This is a strong message from the Court once morest the impunity of the powerful, which finally comes to say that no one has a pass for the commission of crimes for which the Court has jurisdiction.
RFI : But the ICC is not recognized by Russia. Russia does not extradite its citizens. Despite all these limits, is this decision of the ICC a strong gesture?
Sandrine de Sena : We are here faced with an unprecedented situation, neither Russia nor Ukraine are part of the Rome Statute. It is thanks to two ad-hoc declarations that were made by Ukraine in 2014 and 2015, that the prosecutor was able to establish his jurisdiction and investigate crimes committed in Ukraine. So some might say it’s a political decision, but I think there’s an important clarification to make to those criticisms. Admittedly, it was the prosecutor who asked the Pre-Trial Chamber to issue a warrant of arrest, but it was the judges and not the prosecutor’s office who considered that there were reasonable grounds to believe that crimes of war had been committed and that it was therefore necessary to issue a warrant of arrest.
How do you analyze the fact that the ICC chose to directly target the Russian president. She might have initially pursued mid-level officials and gradually moved up to Vladimir Putin. And here, it’s the opposite.
Yes, it is clearly a bold move by the Court which in reality represents a break with the criminal policy usually displayed by the prosecutor’s office, which is normally that of prosecuting the perpetrators of intermediate rank, or finally the performers. The Court is really deciding here to target the most senior official and I believe that is a decision to be welcomed.
The ICC has also chosen to make this arrest warrant public. He might have remained secret, as is often the case.
The mandate might indeed have remained secret, which is generally the case. The Pre-Trial Chamber comes here to say that the arrest warrant has been made public in the interests of justice and I believe that this sends a strong message first of all to Vladimir Putin who sees his movements necessarily limited. But it also sends a strong message to the States Parties who must cooperate with the Court and who are ultimately the only ones who can make arrests since, as we know, the Court does not have a police force. I believe this is a way for the Court to say that the ball is now in the court of the States parties.
Can we expect other mandates?
Probably yes. Nothing prevents the Court from issuing other arrest warrants, whether this time for authors of intermediate rank.
This arrest warrant concerns the abduction and deportation of Ukrainian children. Couldn’t the ICC have prosecuted Vladimir Putin over the bombings and destruction of civilian infrastructure this winter in Ukraine?
In fact, as the commission of inquiry pointed out in its report, these crimes are quite emblematic. And when you read the first lines of the preamble to the Rome Statute, reference is made to children and to crimes that are committed once morest civilians, populations, and primarily once morest children. It’s a theme that is quite sensitive, that speaks to everyone. So I obviously think that it is not insignificant in this context.
When you talk regarding the ICC’s desire to involve the States Parties, we remember Omar al-Bashir and the episode of South Africa which did not want to arrest him when the Sudanese President was in his territory. We risk finding ourselves faced with the same situation on the part of certain countries?
Exactly. In fact, it is clearly reminiscent of the previous Omar Al-Bashir. The ICC had ruled that South Africa had failed in its duty to arrest when the Sudanese president visited its territory. The ICC had refrained from sanctions. But at the same time, the Rome Statute does not provide for this in the event of a lack of cooperation. The question that arises here, is that of immunity, which is ultimately linked to official function. Article 27 of the Statute excludes it, but here we are faced with the question of the personal immunity of heads of State who are not parties to the Sstatute of Rome and South Africa had for example considered that it might not arrest the Sudanese head of state. So, I don’t know if it’s the coincidence of the calendar or if South Africa is unlucky, but Vladimir Putin is normally due to go to the BRICS summit, which is being held in South Africa, this summer. . So, we will have to see once more if the Court finds itself faced with a failure following the previous episode that we have just mentioned.
In terms of comparisons, is this arrest warrant issued once morest Vladimir Putin reminiscent, in your opinion, of the one that targeted former Serbian leader Slobodan Milosevic?
No, I would tend to make a comparison with the case of Omar Al-Bashir, but not necessarily with that of the former Serbian leader, especially since it was not the same court. It was the Tribunal for the former Yugoslavia, here it’s the International Criminal Court, so I wouldn’t make a comparison. PPersonally, I doubt that the Russian authorities will ever be ready to hand over Vladimir Putin to the International Criminal Court, but time will tell.
When we talk regarding Vladimir Putin’s travels abroad, his participation in international forums, we can think of the next United Nations General Assembly next September, in New York.
Certainly, I thought of that too. These trips will necessarily become limited, complicated and on this point, only the future will tell us how things will evolve. In any case, this risks presenting difficulties to diplomats in the context of the negotiation for a possible peace process. The question is whether this will encourage negotiations for peace or, on the contrary, be a hindrance to negotiations.
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