Grim analogies. Does Putin have immunity from the ICC and what does the arrest of Roizman mean? – Ilya Shablinsky on the important events of the past week
Photo by Sergei Chugunov

20 March 2023

By Ilya Shablinsky

Source: Spektr.Press

The International Criminal Court (ICC) in The Hague issued arrest warrants for Vladimir Putin and Maria Lvova-Belova. The latter holds the position of ombudsperson for children’s rights. The press release stated that the two are suspected of deporting several thousand Ukrainian children, a criminal act under Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute. These norms impose liability for the war crime of ‘illegal deportation of population (children) and illegal transfer of population (children).’

One of the proofs that these persons should be held responsible is their own confession, made during their meeting at Putin’s residence on 16 February 2023. In general, according to estimates made by Ukrainian human rights activists, about 16,000 children-citizens of Ukraine were removed from territories controlled by the Russian army: both those orphaned by the death of their parents and those whose parents are now on Ukrainian territory. Having bombed homes and killed parents (or a parent) who were Ukrainian citizens, the Russian state seized their children and now intends to make model Russians out of them. Some historical analogies can be drawn, with the customs of, say, the Ottoman Empire or the German Third Reich. Pretty grim analogies.

This is only the beginning of the judicial investigation, but it is clear that its results provided sufficient grounds for arrest warrants for the persons in question to be issued.

How will this decision of the International Criminal Court practically affect the president of the Russian Federation? Probably not at all at the present time. The Russian Federation, or more precisely its lawyers, took an active part in drafting the Rome Statute which defines the ICC’s authority, and in 2000 the Russian representative even signed the Statute. But the document was not ratified by the Russian Federation, and in 2016 Putin signed a decree stating that Russia no longer intends to recognize the jurisdiction of the ICC.

Can Putin now visit countries that recognize the jurisdiction of the ICC? We can see that he has not done this for a long time and clearly has no intention of doing so in the future. There are also states that do not recognize the jurisdiction of the ICC, such as China or the countries of Central Asia, but I think that Putin will avoid any foreign trips now. Just in case… His status as head of state generally guarantees him immunity, but I think that presidential lawyers, just in case, informed him about the content of Article 27 of the Rome Statute (‘Irrelevance of official capacity’). According to the provisions of this article, ‘official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence… Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

That’s what it says. And so, even if a state doesn’t recognize the ICC, it’s better not to go anywhere. Except, perhaps, to Belarus.

In part, the ICC’s decision has to do with the first results of the work of the UN Independent International Commission. This commission is now examining the crimes committed during the war in Ukraine. These are crimes on both sides of the conflict, but the commission understandably focused its attention on the actions of the army of the aggressor country. In Geneva, the chair of the commission, Eric Mesa, has delivered a report.

What seems to be most important in this report, besides the issue of the deportation of Ukrainian children? In my opinion, the fact that the missile attacks by the Russian armed forces on the energy infrastructure of Ukraine were given an accurate legal evaluation. It is not very difficult to prove that the Russian military launched its missiles at civilian objects quite deliberately, and sought to cause the most damage to these very objects (in particular, power plants). As many will remember, it was President Putin, at one of the receptions in the Kremlin, toying with a glass of champagne, who confided that the Russian armed forces were ‘doing this’ – and even explained for what reason: revenge. For the Crimean bridge, and other things … But Article 8 of the Rome Statute, the international legal instrument that defines the status of the International Criminal Court, contains a definition of the relevant war crime: ‘Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.’ Yes, as stated above, Russia is not a party to the Rome Statute. But this does not prevent the qualification of the crime itself.

Moreover, the Commission demonstrated that a huge number of war crimes, including the killing of civilians, sex crimes, and the indiscriminate use of long-range artillery, have already been documented and scrutinised, and demand attention. As to the crimes committed by the armed forces of Ukraine, there have been several documented cases of executions and wounds inflicted on prisoners of war, amongst other things. These cases appear to have been extensively reported at various points by Russia’s state media.

In a phone call, US and Russian defence ministers Sergei Shoigu and Lloyd Austin discussed a recent incident that took place in the airspace over the Black Sea. According to various sources, a Russian fighter jet dumped fuel on an American unmanned aircraft while it was in international airspace, and the drone then fell into the sea. The American side points out that the drone did not violate anything and did not cross into Russian airspace, while the Russian side insisted that the drone should have respected the flight restriction zone declared by Russia.

In and of itself, this episode is probably not all that significant. In all likelihood, the drone was on a reconnaissance mission and did not actually violate Russian airspace. Plus, the fighter jet disabled it without making contact and without using any ammunition. The Russian side is now trying to recover (or has already recovered) the downed device from the seabed. The Americans have taken issue with this, pointing out that the drone is their property and is situated in international waters. But it is worth noting that for now, at least, the sides are clearly demonstrating that they wish to avoid any head-on collision or direct conflict. This is important given the unfolding confrontation. If it becomes clear that the sides are headed for such a collision, it will mean that the conflict has entered another, very dangerous stage. 

Moving from international developments to those within Russia, a great number of trials and rulings are cropping up that may both surprise us and at the same time cannot be regarded as unexpected. In Ekaterinburg, the police detained former mayor Evgeny Roizman and reported him for the administrative offence of ‘displaying the symbols of an extremist organisation’. As we know, in 2022, the ex-mayor was prosecuted under Article 280(3) of Russia’s Criminal Code for ‘discrediting’ the army in a YouTube video. This film has not been seen since, but in it Roizman is understood to have used the phrase ‘invasion of Ukraine’. This, as we know, is now enough to bring a criminal case. However, the court then chose a preventive measure that did not involve deprivation of liberty: a prohibition on certain actions. Amongst other things, the politician was banned from using the Internet. In recent months, Roizman has been the only prominent opposition politician in Russia who, despite being under investigation, remains at liberty.

The police stated that according to a statement from December 2022 (three months ago, that is), Roizman had reposted information on the social media platform VKontakte about the activities of the Anti-Corruption Foundation. The post included the ACF logo. This was why they went after him with ‘displaying the symbols of an extremist organisation’ (Article 20(3)(1) of the Administrative Code). Next, we should focus on some of the particularities of the present Russian justice system. In district and regional court hearings, it emerged that Roizman had never had a VKontakte account and could not technically have posted in the Evgeny Roizman group. The group was created without his knowledge.

A witness and employee of SKB-Kontur (a Russian software development company) appeared in the trial. He confirmed that it was impossible to make a post on the social network without an account. Furthermore, you cannot post on behalf of a community without being the author or owner of that community. No other arguments were actually made in the course of the trial, and the judges did not ask any further questions. Despite this, the district court judge sentenced the politician to 14 days in jail for the commission of an administrative offence. That ruling was then upheld by the regional court judge. In recent months, such jailings have become just a stepping-stone to further imprisonment and associated criminal sentencing.

This is a schema used in today’s Russia by the authorities against opponents that they fear. Most likely the fate of the ex-mayor of Ekaterinburg was decided in the presidential administration a few days ago. They decided he had to go to jail. Roizman is popular and energetic. The authorities have now decided: all the real leaders of public opinion must either be in prison or forced to emigrate.

On the same day the Khabarovsk garrison military court gave a suspended sentence of five and a half years to a Russian soldier who fought in Ukraine, Daniil Frolkin, for spreading incorrect information about the Russian armed forces (‘fake news’) – specifically for telling journalists how he killed a civilian in Kiev region and how he engaged in plundering together with other soldiers. In other words, he was not tried for murder, but for talking about it.

And on 16 March Novokuibyshevsky court in Samara region heard the administrative law case against a member of the Samara regional Duma, Mikhail Abdalkin. The grounds for the case was a video of Abdalkin listening to Putin’s address to the Federal Assembly with noodles (apparently boiled) on his ears. At the court hearing, Abdalkin explained that he had wanted to hear from the President in his speech how he would address Russia’s domestic problems, and in this way he expressed ‘not only his own discontent, but also the discontent of the people who come to see him with their problems.’ Abdalkin’s lawyer also drew the court’s attention to the fact that the case file contained no forensic evidence of ‘discrediting’ or incitement in Abdalkin’s actions. Most likely, the court had already made its decision before the hearing. Abdalkin was fined 150,000 roubles. This is almost the maximum penalty under Article 20.3.3, Part 1, of the Russian Code of Administrative Offences, which provides for fines of up to 200,000 roubles for officials.

Perhaps there is one piece of news from last week that can be considered definitely good. On the night of 13 March, Canadian director Daniel Rohr’s Navalny won the Academy Award – Oscar – for Best Documentary Film. In this connection, of course, there was a lot of commentary about the so-called politicization of the American film academy’s choice. It is hard to argue with this, but the following should be taken into account. Judging by the winners and nominees of previous competitions for the same prize, the directors of films in the competition that dealt specifically with political issues (as opposed, say, to dealing with environmental issues) in all cases had: a) to convince the voting experts of the validity and fairness of a certain main idea contained in the film, regardless of the position taken at that time by the American authorities and b) to find a successful artistic form for this idea.

To say that members of the film academy take no account of the opinions of current presidential administrations in their selection process is not enough. More often than not, they deliberately disregard those opinions. In 2015, Snowden won the Oscar in this category. A similar choice by members of the film academy in Russia would be to award the Golden Eagle to, say, a film called Oleg Kalugin. Kalugin, in case anyone doesn’t remember, is a KGB general who fled to the US and there exposed some of the goals and methods of the KGB. Can you imagine that? Or, say, the award going to a documentary at the Kinotavr awards exposing the methods used by Russian special services in the seizure of Crimea. Can you imagine that? But in 1993, an Oscar went to The Panama Deception, a film denouncing the Bush Sr. administration’s occupation, contrary to the UN charter, of the state of Panama – with the help of American special services. Most Americans supported the takeover (in three days) of Panama.

All in all, to please those who decide who wins the Oscars, you have to present very serious arguments. Rohr did. It’s also a commonplace to say that the members of the film academy are basically a left-liberal crowd who support left-liberal ideas. Well, maybe. Maybe they are liberal. But, when they want to, they can vote in unison with the most right-wing conservatives. That is, when they want to. And yes, everyone liked Navalny. It was precisely one of those times.

Translated by Simon Cosgrove and LIndsay Munford

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