On Friday 3/17, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and a high ranking Russian official named Maria Lvova-Belova based on what it ruled to be credible allegations of war crimes.
The Russian government responded, stating that the Russian Federation is not party to the Rome Treaty, which forms the basis for ICC jurisdiction, therefore the ICC has no jurisdiction over Putin or Lvova-Belova and the arrest warrant is invalid.
This denial has been roundly debunked by legal experts, but I haven’t seen a very succint explanation of WHY the ICC still has jurisdiction over Putin despite this fact, so I thought I’d write a short explainer—please understand this is meant as a very abbreviated and simplified explanation of ICC jurisdiction.
The long and short of it is that the ICC has jurisdiction, because the government of Ukraine consented to grant ICC jurisdiction over it’s territory in this matter, and the alleged crimes took place within Ukraine.
Lets get one thing out of the way: “jurisdiction” is a legal term that means “the court has the power to tell me what to do.”
For example, if an American travels to France, and punch some guy in a bar fight, the American can’t be like “hey now, I”m an American you can’t bring me into a French court!”—because hte French court will assert that your physical presence in France grants jurisdiction of the court. That is, the French court as the power to hear your case and to punish you.
A separate issue is something called “Choice of Law”—that is, deciding what laws apply to your case. Just because a French court is hearing your case, doesn’t necessarily mean the court applies French law. Sometimes French courts will apply American law, British law, or International law depending on the circumstances.
Most commonly, sometimes international contracts will specify what law applies to the contract—if an American and a Frenchman enter into a contract, the American might end up in French court, but with American law controlling the contract law’s outcome.
So just as a basic thing, understand that these are two separate issues: Jurisdiction (the court’s power to hear your case) and choice of law (what law can be applied to you).
Ordinarily, when discussing “Jurisdiction” in an international context, a key basis in international law is the idea of consent. that’s because nations are “sovereign”—they are rulers, not the ruled. There is no world government that nations answer to. The US Government is not the subject of any other government or entity. Thus, they can only be taken to court with their own consent.
There are some issues that are considered matters of “universal jurisdiction”—i.e. not requiring the consent of the nation. Crimes against humanity, such as genocide are one exception to this rule.
But this is a very limited and narrow exception, and most things (including ICC jurisdiction) require that the party have consented to jursidiction of the court. Usually, this happens when countries become signatories to international treaties, or the nation on a case by case basis agrees to be subject to the jurisdiction of an international court.
For example, the ICC was formed through what’s called the Rome Statute—an agreement by 121 nations to create the ICC and agree to be subject to it’s jurisdiction.
Crucially—Russia is not a signatory to the Rome Statute. This is why the Russian government claims the ICC does not have jurisdiction over Putin.
The Russian government is mistaken.
Like in the example I gave of the American travelling to France and getting in a bar fight, jurisdiction, particularly criminal jurisdiction is historically and legally based heavily based on the location where the crime has been committed.
While the ICC has no innate claim to jurisdiction over Putin or other Russian officials, it CAN claim jursidiction over an area or territory which consents to it’s jurisdiction. Any crimes that have been committed within that territory can be subject to ICC jurisdiction.
Here, Ukraine has agreed to grant ICC jurisdiction over war crimes committed in the Russo-Ukrainian war. This isn’t a one sided thing—the ICC jurisdiction is broad, and the ICC will also have the jurisdiction to ivnestigate and prosecute alleged war crimes by Ukrainians as well.
But because Ukraine has agreed to jurisdiction, the ICC unambiguously has hte power to prosecute war crimes within Ukraine during the course of the Russo-Ukrainian war. Thus actions taken by any nation within Ukraine that constitute a war crime WILL be subject to ICC jurisdiction.
Thus, while Putin can protest saying “Russia never agreed to ICC jurisdiction”—he is in the same position as an American saying “I’m American, you can’t put me in French Court.” By (allegedly) committing criminal acts in Ukraine, Putin has subjected himself to ICC jurisdiction through Ukraine’s consent.
As an aside, the basis for the arrest warrant is the widely reported Russian scheme to move Ukrainian orphans (and in many documented instances, children separated from their parents) from occupied areas in Ukraine into Russia. These children are sent to reeducation camps and/or put up for adoption to “patriotic” Russian citizens.
These actions constitute a clear war crime as a violation of Geneva Convention on Practices Related to Children, because it violates IIHC Rule 135(c) Artice 78(1):(1)
No Party to the conflict shall arrange for the evacuation of children, other than its own nationals, to a foreign country except for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, so require. Where the parents or legal guardians can be found, their written consent to such evacuation is required. … In each case, all Parties to the conflict shall take all feasible precautions to avoid endangering the evacuation.
The long and short of it is that you can’t evacuate children from occupied areas to another country for any reason other than a temporary evacuation for medical treatment. EVEN SAFETY is an insufficient reason to move children from occupied territories, and permanent resettlement is outright forbidden.
However, it is important to note that this part relates to CHOICE OF LAW, as opposed to jurisdiction.
The Geneva Convention on Practices related to Children can only be applied against signatory states. Even if the ICC has jurisdiction, unless a criminal statute is applciable and consented to by the nation, they can’t prosecute.
Here, Russia signed the Geneva Conventions in 1954, and remains a signatory. There is no argument thta these treaties and laws are not applicable to Russia—nor has Russia claimed that they are not (as far as I know).
Comments are closed on this story.