By: Corbin Gregg
Image by Rhododendrites via WikimediaCommons under the CC-BY-SA-4 license.
Much can be said about the role of international law in shaping the behavior of states and leaders. Often maligned, international organizations face criticism from those who wish to see them do more: punish human rights violations, sanction aggressive state actors, and prevent wars of aggression. While these are overall purported goals of international organizations, the way they attempt to effectuate change is sometimes unclear. Nowhere is this more true than the way the international organizations have reacted to the Russian invasion of Ukraine.
On February 24, 2022, Russian President Vladimir Putin authorized “special military operations” in Ukraine, launching attacks against major cities and putting civilians at risk of mass displacement[1] and death.[2] Since the start of the explicit invasion of Ukraine, Russia has displaced millions of people.[3] 9,806 civilian deaths have been confirmed by the UN High Commissioner for Human Rights.[4] The Russian government has been accused of illegally transporting Ukrainian children into Russia.[5]
The International Criminal Court (the ICC) has since issued arrest warrants for Vladimir Putin and Maria Alekseyevna Lvova-Belova, the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, for the unlawful deportation and transfer of a population of children.[6] As anticipated, neither Putin nor Lvova-Belova have faced punishment or been brought in front of the ICC.[7] While the Russian President has not visited any state that is a party to the Rome Statute, which would be forced to extradite him to the ICC,[8] he has travelled outside of the Russian Federation without facing justice for what the Court designates a war crime under the Rome Statute.[9]
To observers, it seems as if there are no enforcement mechanisms within the international legal system to force a head of state like Putin to stand before an international tribunal. There is no international police power that allows a body like the ICC, of which 123 countries are a party, to adjudicate crimes under the Rome Statute when states and their leaders choose not to submit to its jurisdiction.[10]
The Russian invasion was an escalation after years of conflict that saw the annexation of Ukrainian territory (the Crimean peninsula),[11] and Russian support for separatist movements in the Donbas region of eastern Ukraine.[12] Commentators have pointed out the difficulty of charging the crime of aggression within the ICC and the international legal system as a whole.[13] The International Centre for the Prosecution of Russia’s Crime of Aggression was established on July 3, 2023 in order to address the difficulty for the ICC to “prosecute Russia for the crime of Aggression” since the state is not a party to the organization.[14]
The inability of the ICC and other international organizations to enforce international law or other norms calls into question the value of these organizations in shaping the behavior of states and their leaders. Russia’s invasion of Ukraine is a useful case study that demonstrates how explicit sanctions by international organizations turns out to be more symbolic than effective.[15]
Why is it that an organization that purports to serve as a space for adjudication of crimes committed by state actors puts out warrants calling for the arrest of people who will likely never stand before them? Why too, does the organization fail to adjudicate matters that seem to be substantive violations of international criminal law?
In a 2016 article, Mark Kersten pointed to a “symbolic” shift at the ICC, where the institution, under the leadership of Prosecutor Fatou Bensouda, began to operate in a more “symbolic,” manner, likely in recognition of institutional restraints.[16] Bensouda sought to take fewer cases and fewer trials, aimed at having the ICC “limit[] itself” such that it can “tackle crimes that are of the greatest salience to the international community.”[17] It focuses on matters that have the most global attention for this purpose.
This is a turn that could be interpreted in the light of much of the literature that exists discussing enforcement within international law. While it appears states and leaders can simply ignore the mandates of international organizations, pointing to state sovereignty that prevents leaders from punishment in a seemingly jurisdiction-less international forum, it is possible that the goal of international legal institutions is broader than punishing specific infractions or bringing criminal state actors to justice.[18]
Michael Barnett and Raymond Duvall, in their article Power in International Politics, point out that by deploying “rhetorical and symbolic tools,” international organizations or transnational activists can try to get the overall community of states to comply with recognized values or norms in the future.[19] Abbott and Snidal point to the idea that international organizations can act as an “expositor of fundamental community values, thus shaping the behavior of states by making their goals and interests shift as actions out of line with these values take place.”[20] As values shift, the goals of states shift as they try to remain in good standing with the international community and comply with the values laid out by international organizations.
Taking these lessons from international politics and law scholars is important because they demonstrate the ways organizations and law operate that do not require the actual adjudication and punishment of state actors who are difficult to effectuate punishment against. Rather, by issuing an arrest warrant against someone like Vladimir Putin, the ICC is making a more broad, symbolic statement that the actions taken by the Russian government violate international norms.
As an “expositor,” as Abbott and Snidal would say, of values of the international community, the ICC serves an important function in defining which acts constitute violations of norms.[21] While this is a softer enforcement mechanism than bringing Putin before a court and having him stand trial, the goal of the arrest warrant is not simply to effect justice in this one case. It is meant to serve as a broader statement about the values of the international community.
To some, this may appear toothless. The ICC has essentially made a statement without punishing a bad actor. However, framed within the discussion of symbols and norms, the ICC is operating just how it is meant to as an organization with limited jurisdiction or authority to adjudicate claims. Different than domestic law, norm recognition and the promotion of values are core ways international law attempts to effectuate change.
Corbin Gregg is a Staff Editor at CICLR.
[1] USA for UNHCR, Ukraine Emergency, https://www.unrefugees.org/emergencies/ukraine/ [https://perma.cc/YX74-XJSV].
[2] Timeline: The Events Leading Up to Russia’s Invasion of Ukraine, Reuters (Feb. 28, 2022), https://www.reuters.com/article/us-ukraine-crisis-timeline-idAFKBN2KX2AC [https://perma.cc/DM9L-6Z66].
[3] USA for UNHCR, supra, note 1.
[4] UN News, Ukraine: Civilians Endure ‘Unbearable Toll Amid ‘Unrelenting’ Attacks, United Nations (Oct. 9, 2023), https://news.un.org/en/story/2023/10/1142072# [https://perma.cc/DWJ7-VZCN].
[5] Press Release, International Criminal Court, Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and [https://perma.cc/E3QE-MLGX].
[6] Id.
[7] Mark Trevelyan, Russia Defies Putin Arrest Warrant by Opening Its Own Case Against ICC, Reuters (Mar. 20, 2023), https://www.reuters.com/world/europe/russia-opens-criminal-case-against-icc-judges-prosecutor-over-putin-arrest-2023-03-20/ [https://perma.cc/9KY2-MPBU] (in a symbolic move, the Russian Federation’s Investigative Committee opened a criminal case against the ICC itself for breaking Russian law for bringing an “illegal” criminal prosecution).
[8] Id.
[9] Id.
[10] Id.
[11] Putin Says Annexation of Crimea Partly a Response to NATO Enlargement, Reuters (Apr. 17, 2014), https://www.reuters.com/article/us-russia-putin-nato/putin-says-annexation-of-crimea-partly-a-response-to-nato-enlargement-idUSBREA3G22A20140417 [https://perma.cc/S8PZ-KC47].
[12] How Separatist-Held Regions of Eastern Ukraine Have Grown Closer to Russia, Reuters (Feb. 21, 2022), https://www.reuters.com/world/europe/how-separatist-held-regions-eastern-ukraine-have-grown-closer-russia-2022-02-21/ [https://perma.cc/W8HY-UADU].
[13] See Asma Salari & Seyed Hossein Hosseini, Russia’s Attack on Ukraine: A Review of the International Criminal Court’s Capacity to Examine the Crime of Aggression, 2023 Access to Just. E. Eur. 8.
[14] Directorate for Neighbourhood and Enlargement Negotiations, Ukraine: International Centre for the Prosecution of Russia’s Crime of Aggression Against Ukraine Starts Operations Today, European Commission (July 3, 2023), https://neighbourhood-enlargement.ec.europa.eu/news/ukraine-international-centre-prosecution-russias-crime-aggression-against-ukraine-starts-operations-2023-07-03_en [https://perma.cc/9JP4-B6TW].
[15] See Mark Kersten, A Turn to the “Symbolic” at the International Criminal Court, Justice in Conflict (Oct. 5, 2016), https://justiceinconflict.org/2016/10/05/a-turn-to-the-symbolic-at-the-international-criminal-court/ [https://perma.cc/C9ER-T7QK].
[16] Id.
[17] Id.
[18] See Douglas Cassel, A Framework of Norms: International Human-Rights Law and Sovereignty, 22 Harv. Int’l R. 60 (2001).
[19] Michael Barnett & Raymond Duvall, Power in International Politics, 59 Int’l Org. 39, 60 (2005).
[20] Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3, 25 (1998).
[21] Id. at 25.