ICC Arrest Warrant: Russian President Vladimir Putin will reach New Delhi on the evening of Thursday, December 4. This will be one of the most important international trips of the Russian leader since the International Criminal Court (ICC) issued an arrest warrant against him in March 2023. A fundamental question of international law definitely arises from this journey. Is India obliged to serve an ICC warrant and detain a sitting head of state? The simple and clear answer is ‘no’, which is firmly rooted in India’s sovereign legal framework and its long-term foreign policy.
Why was ICC arrest warrant issued?
An arrest warrant was issued by Pre-Trial Chamber II of the International Criminal Court (ICC) on March 17, 2023. In this warrant, Russian President Vladimir Putin and his Children’s Rights Commissioner Maria Lvova-Belova have been named as suspects. The warrant alleges that both men bear personal criminal responsibility for war crimes. This crime relates to the illegal deportation and illegal transfer of children from the occupied territories of Ukraine to the Russian Federation.
ICC lawyer Karim AA Khan said there are reasonable grounds to believe that these acts were committed in Ukrainian-occupied territory starting at least from February 24, 2022, which is the date of Russia’s full-scale invasion. The allegations center on the forced deportation of thousands of Ukrainian children, including those from orphanages and care homes. Evidence suggests that presidential orders issued by Putin streamlined the process of granting Russian citizenship and facilitated their adoption by Russian families.
Geneva Conventions and ICC jurisdiction
The International Criminal Court (ICC) alleges that such removal of children reflects an intention to expel them from their country forever. This act is a violation of the Fourth Geneva Convention and constitutes a serious war crime under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Treaty. Even though Russia is not a member state of the ICC, the court’s jurisdiction has been established. This is because Ukraine has twice formally accepted the ICC’s jurisdiction to investigate alleged crimes committed on its territory since 2014. Ukraine itself is not a ‘State Party’ (member).
Despite the legal basis, Russia rejects the authority of the Hague-based court and dismisses the warrant as legally irrelevant. This action limits the immediate practical effect of the warrant to the 125 nations that have signed the Treaty of Rome. Because only they are legally bound to cooperate with the ICC.
Why is India not obliged to detain?
The key legal shield allowing Putin to travel freely to India is based entirely on the principle of “Pacta sunt servanda”. Which means agreements must be kept. In contrast, a treaty is binding only on the parties involved in the matter. As a result, the entire structure of reciprocal obligations, duties of cooperation and orders for arrest and surrender under the Treaty does not apply to the Republic of India. This position is based on specific long-standing objections. Which were expressed by New Delhi during the process of drafting the treaty in 1998. Issues which were not ultimately rectified to India’s satisfaction.
Politicization by UNSC
India strongly opposed the provision that gives the United Nations Security Council (UNSC) the power to refer or adjudicate cases to the ICC. New Delhi argued that this mechanism has politicized the court, allowing the five permanent members to protect allies or use the court as a diplomatic weapon against others. India believes that the judicial body should work independently of the political organs.
Boycott of terrorism and weapons of mass destruction
India, which has been battling cross-border terrorism for decades, stressed that the treaty should clearly include terrorism and the use of nuclear weapons and other weapons of mass destruction as crimes under the ICC’s jurisdiction. These crimes were not included in the final draft of the Rome Treaty, leading India to consider the scope of the Court incomplete and strategically unbalanced. India believes that its domestic judicial system is strong and capable of prosecuting any serious international crimes occurring on its territory or involving its citizens.
From this perspective, joining the ICC could potentially violate its national sovereignty and the jurisdiction of its own courts. Since India never incorporated the Rome Treaty into its domestic law, there is no enabling law that would empower any Indian court or law enforcement agency to recognize or act on an ICC arrest warrant. Legally, a warrant is an external document issued by a foreign court, which has no mandatory value in Indian jurisdiction.
History of ICC regarding arrest warrants
The diplomatic dilemma that India is currently facing is not unprecedented. New Delhi’s approach is similar to that of other countries that are not bound by the ICC. The most famous example is that of former Sudanese President Omar al-Bashir, who was indicted by the ICC in 2009 for genocide, war crimes and crimes against humanity in Darfur. Due to which he became the first head of state to face such a warrant. Al-Bashir’s subsequent visits highlighted the ICC’s enforcement challenges. He visited several countries that were ICC member states, such as South Africa for the African Union summit in 2015, where it was legally mandatory to arrest him.
