On 17 March, the International Criminal Court (ICC) in the Hague issued an arrest warrant for Russian President Vladimir Putin – only the third such warrant targeting a sitting head of state. Putin stands accused of overseeing the illegal deportation of hundreds of children from Ukraine to Russia since its invasion began in February 2022.

Mark Ellis, IBA Executive Director, welcomes the indictment. ‘The arrest warrant reaffirms that justice and accountability are principles fundamental to the world legal order and worth supporting,’ he says. ‘The warrants are a crucial milestone in the path towards accountability for atrocity crimes.’ And even though Putin might not be arrested and tried any time soon, Ellis believes that the arrest warrant comes at a high price for Russia’s President. ‘It consigns him to the ranks of past heads of state turned war criminals, such as Slobodan Milošević, Charles Taylor, Muammar Gaddafi and Omar Al Bashir,’ he says. ‘There is no coming back from this arrest warrant.’

While acknowledging the political significance of the indictment of a sitting head of state, Sara Elizabeth Dill, Treasurer of the IBA War Crimes Committee and a partner at Anethum Global in London, wonders whether pursuing a case against Putin is the best use of scarce ICC resources, considering that he might never end up in court. ‘The basis of the indictment is also under question, as there are conflicting reports as to the allegations, and some of the children may have been voluntarily given up for adoption,’ she says. ‘Yet another aspect is the repercussions, if any, that this will have on potential peace negotiations; that is whether it will create a greater divide and resistance, or if Putin even considers the threat of prosecution to be a matter to negotiate amnesty in exchange for peace.’ However, she adds, the indictment ‘certainly has resulted in deeper international attention and understanding of international justice and accountability efforts.’

Irina Paliashvili, Founder of the Washington-based RULG-Ukrainian Legal Group, believes that for people in Ukraine, in the midst of war, the value of the indictment is tremendous. ‘In Ukrainian society, I think there is a huge demand for justice,’ she says. After attending the United for Justice conference in Lviv in early March, which aimed at creating accountability mechanisms for crimes committed during the war, she was asked repeatedly by Ukrainians if this meant justice would actually be served. ‘When a child is abducted, it’s a tragedy for the family. But the whole nation wants justice,’ says Paliashvili. ‘For Ukraine, this [indictment] is a […] historic sign that justice will be served.’

The ICC indictment comes amidst negotiations about the establishment of an international tribunal and alongside national trials in Ukraine. The first war crime conviction in a Ukrainian court, of a Russian soldier, took place in May last year. ‘The ICC cannot deal with all the thousands of cases that are currently in the General Prosecutor’s office, but they can go after the person giving the orders, the system. We need an international tribunal to try the crime of aggression,’ says Matviichuk.

The crime of aggression cannot be tried at the ICC in this particular instance, because neither Ukraine nor Russia are party to the Rome Statute, which established the Court. And while Ukraine has accepted the Court’s jurisdiction to try crimes committed on its territory, the crime of aggression would require ratification of the Statute’s amendment that deals with this crime specifically, in both Russia and Ukraine. ‘However, given Putin’s role as the architect of the war and the large-scale crimes being committed by Russian troops in Ukraine, I am certain that further charges will be brought against him at the ICC,’ says Ellis.

What it means for Russia is a matter of speculation, says Paliashvili. One response has come from the Russian foreign ministry spokeswoman, Maria Zakharova, who has stated that: ‘The decisions of the International Criminal Court have no meaning for our country, including from a legal point of view.’

Ex-Russian President Dmitry Medvedev, meanwhile, threatened to attack the war crimes tribunal in the Hague with missiles. The Assembly of States Parties – the management oversight and legislative body of the ICC – responded by reaffirming in a statement its ‘full confidence in the Court as an independent and impartial judicial institution’ and stated it would defend the principles of the Rome Statute ‘undeterred by any threats’.

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In early March, the UK government introduced the Illegal Immigration Bill to parliament – draft legislation designed to complement its controversial plan to send asylum seekers to Rwanda. The bill would see anyone arriving by small boat in the UK arrested and deported to a ‘safe’ third country, including Rwanda.

The UK Home Office maintains that the draft legislation is ‘within the bounds of international law’ and ‘compatible with the Refugee Convention’.

The Rwanda scheme is supposed to serve as a deterrent but critics have questioned whether, without addressing the reasons why people continue to flee, this will indeed be the case. While the prospect of being sent to Rwanda might be a deterrent for some, it might lead to people arriving in a clandestine way instead, says Yeo. ‘What we might see is people trying to get all the way across the channel without being rescued, without being detected, and to enter the country very quietly without ever claiming asylum,’ he says.

Since the grounding of the first Rwanda flight, UK Prime Minister Rishi Sunak has threatened to leave the European Convention on Human Rights. UK Home Secretary Suella Braverman, on a recent trip to Rwanda, claimed that the government had been in discussions with the ECtHR regarding changes to the use of Rule 39 of its Rules of Court, which had made it possible to halt the flight. ‘Rule 39 is a fundamental part of the system of protection. It allows the Court to intervene in urgent cases where there’s an imminent risk of what they call irreparable damage’, explains Nicholas Rollason, Chair of the IBA Immigration and Nationality Law Committee and Head of Immigration at Kingsley Napley in London. ‘I can’t see that the Court would give the UK some form of opt out from those provisions, because they’re precisely to avoid these sorts of opt-outs and problems.’

The ECtHR issued a statement in response to Braverman’s claims, in which it said that ‘Since last November, reflections are ongoing in relation to the procedures for dealing with interim measures. This internal review is unrelated to any individual case or the position on interim measures of any one of the 46 member states.’

The government’s claim is all part of a political game, according to Rollason. ‘It’s a way of pointing a finger to a supranational convention or institution so that you can say: we’ve tried to change it, modernise it, but unfortunately, the institution and the convention and the council were not willing to meet our reasonable demands. And that is why we’re now looking to exit the Convention’, says Rollason.

Some observers believe the government’s criticism of the Court is part of the ‘taking back control’ narrative associated with Brexit. The government, says Rollason, are concerned they’re not seen to have taken control of this situation, which they promised to do after and during the Brexit referendum. ‘That narrative is expanding into legal sovereignty and what the roles of the Council of Europe and the Convention are in the UK. Why should an international convention be stopping the UK government from doing what it wants to do?’ says Rollason.

As an additional measure to halt small boat arrivals, a group of MPs proposed an amendment to the Illegal Immigration Bill, which would have seen the creation of more legal routes to the UK for refugees. This amendment has since been withdrawn. While access to safe and legal routes is important, Yeo says it’s questionable whether this should be touted as a solution. ‘The kinds of people who would benefit from any kind of safe and legal routes that the government is likely to set up aren’t necessarily the same kind of people who are reaching northern France and trying to cross in small boats or lorries’, he says. Realistically, adds Yeo, expanding safe and legal routes is unlikely to diminish the demand for unlawful entry.

According to a Home Office spokesperson, the creating of more safe routes will happen only after the ‘rise in illegal migration’ has been stopped. ‘The asylum system is being reformed at the same time. Shorter interviews, simpler guidance and more decision makers will help clear the asylum backlog by the end of the year,’ the spokesperson adds.

Although the government is determined to restart the flights to Rwanda as soon as possible, litigation is ongoing for some of the asylum seekers that were present on that first, grounded flight. ‘The UK High Court ruled that the government did not consider the individual circumstances of those asylum seekers and migrants it attempted to deport in its initial flight and must do so to avoid future legal challenges’, says Matthew Wills, an associate partner at Laura Devine Immigration in London. ‘As permission to appeal was recently granted, litigation shall remain ongoing for the foreseeable future.’

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