International justice: ICC issues arrest warrant for Vladimir Putin
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.
‘Incidents identified by my Office include the deportation of at least hundreds of children taken from orphanages and children’s care homes. Many of these children, we allege, have since been given for adoption in the Russian Federation,’ said Karim Khan, Prosecutor of the ICC, in a statement following the announcement.
One of these children, from Mariupol, has been ‘adopted’ by Maria Lvova-Belova, Putin’s Commissioner for Children’s Rights, who has been indicted alongside him. Russia has claimed that it was a humanitarian decision to take orphaned Ukrainian children out of a war zone to safety. But many of them have relatives who are in despair after learning about their disappearances.
‘For us, it’s a first step,’ says Oleksandra Matviichuk, Chair of the Board of the Center for Civil Liberties in Kyiv. ‘It’s recognition that it’s not only our imagination. It’s not an illusion. It’s important that it is now officially considered a crime, and to send a signal that even people at Putin’s level will be punished. But it’s just the beginning.’
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The warrants are a crucial milestone in the path towards accountability for atrocity crimes
Mark Ellis
Executive Director, International Bar Association
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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IBAHRI condemns arrests in Iran
The International Bar Association’s Human Rights Institute (IBAHRI) reiterates its call for the authorities of the Islamic Republic of Iran to immediately halt any ‘trials’ and planned executions of protestors, including that of 22-year-old Mohammad Ghobadlou, who is at imminent risk of execution. Furthermore, the IBAHRI calls on the United Nations to investigate a spate of reported suspicious ‘suicides’ among protestors.
IBAHRI Director Baroness Helena Kennedy KC commented: ‘The politically charged nature of these cases, the denial of access to adequate legal representation, the use of vaguely worded criminal provisions, the expedited rate of the proceedings and executions, and the visible signs of torture leading to forced confessions of the defendants are all emblematic of the Iranian authorities’ attempts to instil a chilling effect in protestors.’
The IBAHRI also condemns the issuance of a summons for Iranian civil activist Reza Khandan to begin a six-year prison sentence that was handed down in 2018 for a Facebook post published in support of calls to dismantle discriminatory laws against women and for the release of human rights defenders. The IBAHRI calls on Iran’s authorities to drop all charges against Khandan, the husband of prominent human rights lawyer Nasrin Sotoudeh.
In January 2019, Khandan was sentenced to six years' imprisonment by Tehran’s Revolutionary Court. He appealed the decision. The sentence had not been enforced. He has now been summoned to report to prison to begin serving his sentence.
IBAHRI Co-Chair Mark Stephens CBE stated: ‘The IBAHRI condemns in the strongest possible terms the Iranian authorities’ latest attempt to intimidate Reza Khandan. This action demonstrates not only the brazen silencing of renowned activists, but also the targeting of any Iranian who voices support for the improvement of women’s rights in Iran.’
Concern over reports of harassment of Ugandan Supreme Court judge
The International Bar Association’s Human Rights Institute (IBAHRI) has expressed concern over reports of harassment and unfair treatment against Dr Esther Kisaakye, Ugandan Supreme Court Justice, after she handed down a dissenting judgment during the 2021 presidential election petition. Justice Kisaakye alleges that a disciplinary inquiry, disguised as a general inquiry, was initiated by Uganda’s Judicial Service Commission following the dissenting judgment, and without observing any due process and procedures under the Ugandan Constitution. She has also accused senior judicial figures of withholding her salary, housing and other benefits and not allocating any work to her.
Ann Ramberg Dr Jur hc, IBAHRI Co-Chair, said that ‘Justice Kisaakye acted in accordance with international standards on the independence of the judiciary in delivering her dissenting judgement, seemingly despite overwhelming pressure not to do so’ and has reiterated the IBAHRI’s concerns that the calls for her to be removed are unconstitutional and go against the UN Basic Principles on the Independence of the Judiciary.
Mark Stephens CBE, IBAHRI Co-Chair, added that ‘The IBAHRI is concerned that the reports imply violations of Uganda’s obligations under regional and international law. We call for all procedural rights of Justice Kisaakye to be fully respected by the JSC and any subsequent tribunal established, as per Uganda’s international and constitutional obligations, and for an end to any arbitrary and unfair harassment, including punitive and pecuniary measures taken against her’.
Read the full statement here.
New report published on Daesh atrocities
The International Bar Association’s Human Rights Institute (IBAHRI) has published a working draft report entitled Justice and accountability for the atrocities of Daesh - progress made and the way forward. The report is co-authored by the IBAHRI and The City Law School.
The report provides recommendations following the ten-year anniversary of the genocide perpetrated against the Yazidis by Daesh, a terror organisation, which began on 3 August 2014 with the Daesh attack on Sinjar. Recommendations are provided on the following issues: stopping the atrocities; bringing Daesh members to justice; pursuing state responsibility under the Genocide Convention; assisting victims and survivors; and strengthening the protection of the targeted communities, among others.
This report is a product of in-depth research into the issues pertaining to justice and accountability for Daesh atrocities. The report was produced after desktop research – including a review of existing data on the topic, a fact-finding mission to Iraq and further interviews.
Read the report here
IBAHRI participates in UN Human Rights Council side events
The International Bar Association’s Human Rights Institute (IBAHRI) took part in a number of side events at the 52nd Session of the UN Human Rights Council in late February.
During the session ‘Justice for the Daesh Atrocities: The Need for Comprehensive Responses’, speakers – including the IBAHRI’s Dr Ewelina Ochab – discussed the progress made on justice and accountability for the prohibited acts committed by Daesh against the Yazidis, an ethnoreligious minority group in Iraq, and the ongoing issues that require political attention.
The event ‘The Role of Defence Lawyers in Death Penalty Cases’ drew upon the OSCE Office for Democratic Institutions and Human Rights’ 2022 Background Paper on the Death Penalty in the OSCE Area. The paper includes a thematic chapter on the subject, produced with the support of the IBAHRI. This side event aimed to raise awareness of the unique professional and personal challenges defence lawyers working on capital punishment cases face, and of how national and international stakeholders can better support such lawyers in their work.
Lastly, on 27 February, the IBAHRI’s Director Baroness Helena Kennedy KC moderated a discussion entitled ‘Lawyer At Your Own Risk’. Given that lawyers are regularly threatened or attacked when representing clients in politically, economically or emotionally challenging cases, this session sought to highlight the problem and the need for a broader mapping of existing protection, grey zones and gaps, and to exchange good practices that could serve as inspiration more globally.
Watch the event ‘Justice for the Daesh Atrocities: The Need for Comprehensive Responses’ here
More information on the IBAHRI UN Programme is available here
Ukraine: accountability for war crimes
The International Bar Association’s Human Rights Institute (IBAHRI) co-sponsored and took part in a panel discussion organised by the Permanent Mission of Ukraine to the United Nations entitled ‘Ukraine: Accountability for War Crimes and Serious Human Rights Violations’ on 21 March at the Palais des Nations in Geneva. This featured Francesca Restifo, IBAHRI Senior Human Rights Lawyer and Representative to the UN as a speaker, alongside numerous others including Yuriy Belousov, Head of the War Crimes Department of the Office of the Prosecutor General of Ukraine, and Erik Møse of the Independent International Commission of Inquiry on Ukraine (COI).
Based on its investigations of the events in Chernihiv, Kharkiv, Kyiv and Sumy, the COI has reported reasonable grounds to conclude that an array of war crimes and violations of human rights and international humanitarian law have been committed in Ukraine. This session allowed an opportunity for various actors focused on aspects of the accountability process to provide an assessment of the situation in Ukraine and consider options for furthering accountability.
High Level Panel attends 2023 Summit for Democracy
The International Bar Association’s Human Rights Institute (IBAHRI) and the High Level Panel of Legal Experts on Media Freedom (the High Level Panel) substantially contributed to the 2023 Summit for Democracy in The Hague, which took place on 29 and 30 March 2023.
The High Level Panel is an independent body that was convened in July 2019 at the request of the UK and Canadian governments. The High Level Panel comprises a diverse group of leading lawyers from around the world and provides advice and recommendations to governments to prevent and reverse abuses of media freedom.
The High Level Panel has been one of the leads on the Democracy Cohort on Media Freedom, collecting commitments from states on legal reform to advance media freedom and freedom of expression. These commitments were showcased at the regional Summit in The Hague, where representatives from the High Level Panel spoke.
Migration: UK and ECtHR square off over controversial Rwanda scheme
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.
However, according to the UN Refugee Agency (UNHCR), the policy would ‘amount to an asylum ban – extinguishing the right to seek refugee protection’. The UK government has also battled the European Court of Human Rights (ECtHR) over the plan, with the Court intervening in June 2022 to halt the first flight to Rwanda at the last minute, with the plane sitting on the runway, ready for take-off. Ever since, the UK government has attempted to get the scheme back up and running.
‘The UK government takes a very formalistic and hyper legalistic approach to interpreting the [UN] Refugee Convention, where it’s interpreted almost like it’s a contract’, says Colin Yeo, a barrister specialising in immigration law at Garden Court Chambers in London. ‘The Convention doesn’t require states to determine refugee status within any particular time frame, it doesn’t even require states to determine refugee status. It’s implicit. It’s obvious that it requires people to do that, but it doesn’t say so anywhere.’
I can’t see that the ECtHR would give the UK some form of opt out from [Rule 39 and other] provisions, because they’re precisely to avoid these sorts of opt-outs and problems
Nicholas Rollason
Chair, IBA Immigration and Nationality Law Committee
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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