By Aaron Fichtelberg
University of Delaware
(THE CONVERSATION) — The Russian government, U.S. President Joe Biden and mainstream Western media are among the observers who all responded to Russian President Vladimir Putin’s arrest warrant for war crimes with a shrug.
In March 2023, the International Criminal Court announced the warrant for Putin and his commissioner for children’s rights, Maria Lvova-Belova, because they allegedly directed the abduction of Ukrainian children. The court says that these charges amount to war crimes.
While Biden said the arrest warrant was “justified,” he also noted that the International Criminal Court “is not recognized by us either.”
The skeptics have a point – the ICC, based in the Hague, Netherlands, does not have its own police force to execute its orders and must rely on other countries’ police to arrest the people it indicts.
Indeed, there are a number of barriers potentially preventing Putin’s arrest.
One is that Russia, like the United States, is not a member of the court – so as long as Putin does not set foot in a country that is a member of the court, he is safe from arrest. Putin also remains popular within Russia and is unlikely to soon be overthrown and turned over by his successor.
But it still would be rash to assume that Putin is safe from the court’s grasp.
I am a scholar of criminal justice who specializes in international courts and the creativity that prosecutors show in catching their targets, often under very difficult political circumstances.
History shows that it would require a little bit of good luck for prosecutors – and a few bad decisions by Putin – for the Russian autocrat to end up in handcuffs. But it’s far from impossible.
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How international courts work
A group of 60 countries established the International Criminal Court in 2002 to prosecute people who commit the worst crimes, including genocide and wartime sexual violence, that violate international law. The court is part of a long line of international criminal tribunals going back to the military tribunal the U.S. and allies set up to prosecute Nazis at the end of World War II, as part of the Nuremberg Trials.
There are other international criminal courts that prosecute war crimes, but the ICC is the largest and arguably most influential, since 123 member countries fund the court and abide by its rulings.
Since its inception, the ICC has issued 38 arrest warrants, arrested 21 people, convicted 10 and acquitted four. Other suspects, like Putin, remain at large or have had their charges dropped.
Yet there are a number of options for prosecuting war crimes outside of the ICC that have been used in the past.
There are also other, smaller tribunals similar to the ICC that countries have helped set up to focus on specific conflicts. In other cases, individual countries can use their own courts to prosecute international criminals who have evaded arrest abroad.
In the case of the Ukraine war, Ukrainian President Volodymyr Zelenskyy has called for a new international tribunal to prosecute war crimes committed by Russia during the conflict. Others have argued that Putin could be prosecuted in a Ukrainian court specifically designed for this purpose.
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Lessons for Putin
There have been several long but ultimately successful efforts to arrest fallen political leaders and mass murderers.
For example, Charles Taylor, the former president of Liberia who helped instigate a civil war in neighboring Sierra Leone in the 1990s, is now serving a 50-year prison sentence in the United Kingdom.
Prosecutors from an international tribunal set up in Sierra Leone announced Taylor’s indictment when he was in Ghana in 2002, forcing him to quickly flee a political conference and head home for safety. But Taylor then fell from power in 2003, in the midst of a rebel insurgency. He then fled to Nigeria.
Eventually, Nigerian authorities arrested Taylor and handed him back to Liberia, which quickly passed him off to Sierra Leone for trial in 2006. He was then convicted in 2012.
Slobodan Miloševi?, the late president of Yugoslavia, was indicted by an international tribunal that addressed the Balkans wars – along with two of his cronies, Ratko Mladi? and Radovan Karad?i? –- for crimes committed against civilians during the wars in the 1990s.
They, too, initially evaded jurisdiction - Miloševi? initially remained in power, while Mladi? and Karad?i? went into hiding. Serbian authorities ultimately handed Miloševi? over to the International Criminal Court in 2001, months after he stepped down from his post in 2000. Serbian police arrested Mladi? and Karad?i? about a decade later.
All three faced trial in the Hague. Miloševi? died while on trial in 2006. Mladi? and Karad?i? are now serving life sentences.
And in Finland, former Sierra Leone rebel group leader Gibril Massaquoi is facing trial for war crimes he committed during Sierra Leone’s civil war from 1991 to 2002.
Prosecutors at a Sierra Leone tribunal granted Massaquoi immunity in 2009 in exchange for his testimony against other rebels. He then relocated to Finland under a witness protection program.
But that did not stop Finnish prosecutors, who arrested Massaquoi in March 2020. His trial is currently under appeal in Finnish court system following Massaquoi’s acquittal by a lower Finish court in 2022.
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Even without prosecution, life won’t be good
There are people such as Omar Al-Bashir, the former president of Sudan, who have so far avoided extradition to an international court. The ICC issued an arrest warrant for Al-Bashir in 2009 for allegedly committing genocide in the Darfur region of Sudan. Al-Bashir remains in Sudan and has continued to avoid the ICC’s arrest warrant. But with the current civil war in Sudan, the warring powers may yet conclude that they’re better off with Al-Bashir in the Hague and away from Sudan.
But even if Putin isn’t prosecuted, his life will probably get much more difficult as a result of the arrest warrant.
When the late Chilean dictator Augusto Pinochet left office in 1998, he declared himself “Senator for Life,” ensuring under Chilean law that he would never be prosecuted for the tortures, killings and disappearances of leftist political opponents that took place on his watch.
But while Pinochet was receiving care for a back injury in London, a Spanish judge requested his extradition to Spain, and he was arrested by British police in 1998.
After over a year of legal limbo, the British government declared that Pinochet was mentally unfit for extradition and returned him to Chile. By then, he was a very diminished man and the target of many lawsuits before his death in 2006.
Putin may ultimately elude prosecution, but not the effects of the charges against him.
History shows that prosecutors are willing to wait for years for their targets to either fall from power or make that crucial mistake that exposes them to arrest, such as a medical emergency abroad or a visit to a country that is willing to cooperate with international prosecutors.
