By Ambassador Thomas Graham Jr. and David Bernell
There is a line in scripture that says, “If anyone causes one of those little ones—those who believe in me—to stumble it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea” (Matthew 18:6).
On March 17, 2023 the International Criminal Court (ICC) issued arrest warrants for Vladmir Putin, President of Russia, and Maria Lvova-Balova, Putin’s Commissioner for Children’s Rights, saying that they are “responsible for the unlawful deportation of persons (children) from occupied areas of Ukraine to the Russian Federation.” These two have developed and carried out a policy of kidnapping Ukrainian children and sending them to Russia to be adopted by Russian families. These children have been abducted by Russian soldiers, many of them seized from orphanages and children’s care homes in occupied Ukraine. They are brought to Russia and forcibly adopted by Russian families against their will. The children are told that their families don’t want them anymore, or that their parents have died. Families in Russia are encouraged, even paid, to adopt them, while the kids are given “patriotic education.”
The Russians openly admit to the removal of Ukrainian children, saying they’re engaged in a humanitarian effort in which more than 1,000 children have been given homes in Russia. The Ukrainians claim the number is closer to 16,000. Moreover, Ukraine claims that these actions are part of the larger Russian effort to erase Ukrainian identity – they are intended as a form of genocide, a crime against humanity as spelled out in the Geneva Convention. This claim is well supported by Putin’s own words, in which he has claimed that Ukraine is not a legitimate state, in fact it is not a state at all, and that Ukraine should be made part of Russia where it belongs.
The Authority of the International Criminal Court
The actions of the International Criminal Court demonstrate that it sees this situation more like the Ukrainians do. While the ICC has not gone so far as to characterize Russian actions as genocide or crimes against humanity, Putin and Lvova-Balova are now justifiably, correctly, and justly being called to account for seizing Ukrainian children. These two should beware of lurking millstones when they travel.
Several days after the ICC arrest warrants were issued, the Biden Administration added its own thinking to the conversation. It announced, in a speech by Ambassador Beth Van Schaak, that it would support “the development of an internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine.” This is envisioned as an effort that would exist alongside the actions of the ICC, as well as those currently being pursued in the Ukrainian legal system to investigate and prosecute Russian war crimes. While there are numerous criticisms and logistical challengesthat have been pointed out with respect to to the Biden Administration proposal, and teams of lawyers and diplomats would be necessary to turn this idea into a workable institutional arrangement, such critiques do not diminish the larger point and the larger project, which is to hold Vladmir Putin and the Russian regime accountable for their crimes, and to fully document these crimes and make them clear to the entire world.
Unfortunately, there may not be much chance that the ICC, Ukraine, or any newly developed tribunal will get Putin in custody to put him on trial. The process begun in the ICC is the most concrete, institutionalized effort thus far to target Putin, but it is clear that the challenges are immense. The ICC has no authority (much less the capability) to compel Putin to come before them and stand trial. Putin would not allow himself to be brought to the Hague. Nor is he going to travel anywhere that would arrest him and turn him over. Russia doesn’t even recognize the court – it’s not a member (neither is the United States) – and Russian officials have publicly expressed that the ICC is powerless against them. There is little reason to expect that a country like Russia or a man like Putin is going to be subject to international criminal law in this case.
Moreover, the ICC does not have the authority to try people in absentia. Defendants have to be present for their trials. Therefore, it seems that Putin need never fear the ICC and any effect it could have on what he might do. Public opinion in many places around the world might strongly wish the situation was otherwise, but it would be likely to agree with this assessment.
To that end, it might be tempting to lament that the ICC arrest warrant – or any other proposal made to hold Putin accountable – has no practical implications, or that it is largely symbolic. But perhaps Putin, his government, his followers, and public opinion around the world should not jump too quickly to this conclusion.
First of all, just because an action may not achieve the desired results does not mean it is inappropriate to pursue that course of action, particularly in this case, where the behavior is so egregious and so horrendous that the correct course of action is to charge Putin, Lvova-Balova and perhaps others with war crimes and put them on trial in one of many possible venues. Second, one measurement of the value of international law is not always whether there is someone who can fully enforce it, but instead whether a violator can be made to pay a price. And in this respect, the ICC offers a path forward.
In the Rome Statute, the founding document of the International Criminal Court, Article 61 provides authority for a “confirmation hearing” to collect evidence to confirm the crimes charged in an ICC indictment. In the process of carrying out this hearing, the Rome Statute specifies that, “At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged,” and that, “the Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.” In addition, the person charged with a crime does not have to be present for the confirmation hearing. The Court can proceed to “hold a hearing in the absence of the person charged.”
This step in the process offers the opportunity for the prosecutor to present all the evidence they have against Putin, Lvova-Balova, and the government that has encouraged war crimes and made them possible. The confirmation hearing offers the opportunity to meticulously document their crimes fully and openly. Even if those charged are never arrested, even if this effort never leads to a trial, even if there is never a conviction, it is not only important, it is essential to engage in the process of laying out all the evidence that supports these charges for all the world to see. The same is true for any other court or tribunal that is established or authorized to address the prosecution of Russian war crimes. Such bodies should be able to publicly present the evidence that has been gathered to support the charges made, to establish the record as comprehensively as possible.
Holding Putin Accountable
The likely outcome of a confirmation hearing that successfully carries out this task would not only be to confirm the charges made and to set the record straight (if it isn’t clear enough already that “the moral condemnation will likely stain the Russian leader for the rest of his life,” and well beyond it). It would also further the effort of destroying the power, reputation, and credibility of Putin and the Russian regime so that they could not recover from the testimony and evidence presented, whether or not they remain in power. This is because a well-documented and publicly acknowledged case against Putin in the established, legitimate international body established for this very purpose puts all other nations on notice, particularly those that are members of the ICC. It tells them that they if they choose to ignore the commitments they have made under international law – and many of them will do exactly that in order to benefit economically or politically from ties to Putin and Russia – then everyone in the world will know where they stand, on the side of excusing and overlooking criminality. Such an outcome may be far from a complete victory, but this mobilization of shame and embarrassment would most certainly constitute progress.
The International Criminal Court should promptly start down this road. It is the path of civilization, liberty, freedom, and truth.
About the Authors
Ambassador Thomas Graham Jr. is former acting director of the U.S. Arms Control and Disarmament Agency under President Clinton, and the special representative of President Clinton for Arms Control, Nonproliferation and Disarmament. He served as General Counsel of ACDA during the presidencies of Jimmy Carter, Ronald Reagan and George H.W. Bush. He is the author of several books on nuclear arms control, U.S. foreign policy, and American politics.
David Bernell is an Associate Professor of Political Science in the School of Public Policy at Oregon State University. His research and teaching focus on international relations, American foreign policy, and US energy policy. He is the author of the books Constructing US Foreign Policy: The Curious Case of Cuba, and The Energy Security Dilemma: US Policy and Practice. Prior to coming to OSU, he served as a political appointee in the Clinton Administration with the US Office of Management and Budget, and with the US Department of the Interior.
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