ICC Issues Warrant for Putin’s Arrest: What it Reveals About International Accountability for Wartime Sexual Violence

On March 17, 2023, the International Criminal Court (ICC) shocked the world by issuing arrest warrants for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Lvova-Belova. Both Putin and Lvova-Belova were accused of war crimes for unlawfully deporting and transferring children from occupied Ukraine to Russia (McAllister and Krcmaric, 2023). While currently unclear what, if anything, this motion will accomplish, it marks the first time a world leader holding a permanent seat on the UN Security Council has faced an ICC warrant (McAllister and Krcmaric, 2023). Given that the ICC lacks a police force and relies entirely on international cooperation for enforcement, Putin is unlikely to be arrested or face any criminal charges (McAllister and Krcmaric, 2023).

This is highly problematic, as Putin and the Russian military are also responsible for another grave war crime in Ukraine: sexual violence. Ukrainian officials and international human rights groups report that Russian forces have committed systematic rape and sexual assault as “weapons of war” targeting women, children, and men since the invasion began (John et al., 2022). In Bucha, a suburb of Kyiv, it was reported that over two dozen women and girls were systematically raped by Russian forces in a deliberate attempt to humiliate, intimidate, and punish the Ukrainian people (Wamsley, 2022). While the exact number of rapes remains unknown, mounting reports indicate widespread atrocities by Russian forces ranging from gang rape to sexual coercion and forced witnessing of rape as psychological torture (UN News, 2022). As of June 2022, the Office of the UN High Commissioner for Human Rights reported 124 cases of wartime sexual violence, but the actual numbers are likely much higher (UN News, 2022).

Putin’s warrant by the ICC and his effectively guaranteed impunity reveal the shortcomings of international accountability for wartime sexual violence. Despite the prevalence of wartime sexual and gender-based violence (SGBV) in armed conflicts throughout history, accountability by the international community is a rather recent phenomenon. Wartime SGBV is now regarded as a tactical weapon of war rather than an individual act of aggression and natural by-product of war. Nevertheless, lack of attention to victims’ needs and continued impunity for perpetrators allows SGBV to persist without punishment. Charting the historical evolution of international accountability for wartime sexual violence, paying particular attention to the unintended consequences of the ICC that impede enforcement, thus reveals the need for additional reforms to hold war criminals like Putin accountable.

Evolution of International Accountability

The international community’s handling of wartime SGBV can be broken down into two main stages of evolution. The first stage, and the longest one historically, is impunity. This stage is marked by the international community’s popular tendency to treat wartime SGBV as a matter of individual aggression resulting from soldiers’ pent-up sexual frustration. The nineteenth century saw international law traditionally regard gender-based violence as an offense against family or morality rather than a crime of violence (Manjoo and McRaith, 2011). The absence of women at the Hague Conventions of 1899 and 1907 resulted in rape is considered a crime of passion that states were incapable of controlling or preventing (Manjoo and McRaith, 2011). While the events of the Napoleonic Wars led to the global prohibition regime against pillage, rape remained excluded from international law; it would take another hundred years for the global prohibition regime against rape to take fruition (Inal, 2013; Manjoo and McRaith, 2011). Rape was only considered unacceptable when it violated the property rights of men who “owned” the victims (Manjoo and McRaith, 2011).

Even after World War II where rape was widespread, the Nuremberg Trials of 1945 only included rape as a form of torture. Similarly, the International Military Tribunal for the Far East (1946), more commonly known as the Tokyo War Crimes Tribunal, only charged rape as an inhumane treatment violating family honor, following the definition set forth in the Hague Convention. The Geneva Convention of 1949 did mention rape, but strictly as “an attack on [their] honor” that women “shall be especially protected against.” Overall, this first stage was defined by the general belief that SGBV was an unfortunate but unavoidable part of the war (Manjoo and McRaith, 2011), and consequently, there was no use for international law to attempt to address it. The international community thus lacked both the capacity and resolve to address SGBV.

The second stage is accountability. This stage saw the international community realize wartime SGBV was more than simply an individual-level phenomenon, and thus it needed to be explicitly addressed and criminalized by international law. Efforts to address wartime SGBV in codified international law occurred gradually through a series of important events. One major achievement was the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979. The CEDAW is the most comprehensive international instrument to date dealing with the rights of women. Even though violence against women was not specifically addressed, several clauses protected women from violence (Manjoo and McRaith, 2011). While the CEDAW requires state ratification, it signaled the first time that member states publicly acknowledged the myriad forms of violence against women. While a step in the right direction toward addressing wartime SGBV, it would take two horrific genocides to create the necessary shock for integrating rape into the norm development process for global prohibition.

These genocides occurred in Yugoslavia and Rwanda, where the international community saw the weaponization of wartime SGBV for mass ethnic cleansing. The International Criminal Tribunal for Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 saw rape prosecuted as a war crime for the first time in history, with convictions for rape and sexual enslavement as forms of torture, components of genocide, and crimes against humanity (Manjoo and McRaith, 2011). The ICTY and ICTR thus played an important role in demonstrating that traditional definitions of SGBV could be reworked for prosecution; the international community was no longer willing to let war criminals perpetrating SGBV go unpunished.

Perhaps the most monumental achievement for international accountability was the ultimate global prohibition of rape codified in the Rome Statute of 1998. This convention established the International Criminal Court (ICC) and explicitly mentioned rape, sexual slavery, enforced prostitution, and forced pregnancy as “crimes against humanity” and a “war crime” constituting a “grave breach of the Geneva Conventions” (Inal, 2013). By assigning the ICC jurisdiction to prosecute according to this definition, the Rome Statute represented the highest degree of obligation, precision and delegation in mandating state parties investigate and prosecute wartime SGBV or relinquish jurisdiction to the ICC (Inal, 2013). The Rome Statute thus represented a milestone in the codification and enforcement of transnational accountability, demonstrating that SGBV would not be tolerated by the international community and was now prosecutable among the worst wartime offenses.

Lastly, the international community increased accountability by codifying wartime sexual violence as a threat to national security in UN Security Council resolutions. UNSCR 1325 on Women, Peace, and Security (2000) extended human rights law to women during and after armed conflict; UNSCR 1820 (2008) recognized sexual violence as a threat to national security, delineating the responsibility of peer states to intervene and stop SGBV; and UNSCR 1674 (2004) condemned all acts of violence against civilians in armed conflict, including wartime SGBV (Inal, 2013). These resolutions supported the Rome Statute by proving once and for all that the definition of wartime SGBV had changed among the international community. No longer considered an offense to individual family honor, wartime SGBV was now fully deemed a grave threat to the national security of states that the international community could not afford not to address.

Unintended Consequences Inhibiting Accountability

Despite this progress, several unintended consequences of prosecuting wartime SGBV continue to prevent full international accountability. One persisting consequence is impunity for state and non-state actors perpetrating wartime SGBV, despite its prohibition in international law (Manjoo and McRaith, 2011). Despite issuing several indictments for rape as a war crime and a crime against humanity, only 19 suspects have been prosecuted for SGBV since the ICC’s establishment, and only 3 convicted. The ICC suffers from enforcement issues, as no comprehensive procedures exist to locate and force indicted criminals to attend their hearings. According to the principle of complementarity, the ICC can only intervene when states lack the capacity or willpower to carry out accountability. This has led some states to leverage domestic jurisdiction and help war criminals evade prosecution. Several great power states including Russia and the United States have refused to sign the Rome Statute and, as a result, are not legally required to turn over accused war criminals to the ICC.  Moreover, the ICC has been widely criticized for African bias as most indictments have targeted leaders from African countries, despite wartime SGBV occurring around the world. Substantial structural reforms are needed to improve prosecution and establish a more definitive standard that international accountability shall be enforced and perpetrators duly punished.

Another unintended consequence is that international prosecution does not account for all forms of SGBV, such as domestic violence, that often persist and even increase post-conflict. The end of armed conflict does not mean the end of violence against women, as women’s bodies are often targeted and attacked during so-called peacetime. In Guatemala where domestic violence affects most women, failure to effectively address the legacy of violence against women during the peace process contributed to persisting post-conflict violence. Similar trends were seen in Cambodia where post-civil war and prosecution of the Khmer Rouge regime for crimes against humanity, 20 percent of women still reported intimate partner violence (Cambodian Center for Human Rights, 2018). Until domestic violence is addressed, full accountability and true post-conflict peace will never exist for women.

The last unintended consequence is the futility of the current scope of transitional justice. The UN currently defines transitional justice as the full range of processes and mechanisms associated with society’s attempts to come to terms with the legacy of large-scale past abuses to ensure accountability serves justice and achieves reconciliation (Aroussi, 2011). This definition results in a narrow conception of justice focused primarily on criminal prosecution and overlooking true reparations for victims (Aroussi, 2011). Survivors suffer from shame, stigmatization, health issues, and lack of access to support resources during and after testifying. 

More often than not, however, such support is not readily available to victims of wartime sexual violence, despite the undue responsibility on them to provide the necessary evidence for prosecution. Rather, international actors tend to decontextualize, objectify, and commodify wartime SGBV to capture media attention and secure competitive funding among INGOs, victims, and perpetrators alike (Meger, 2016). This process of fetishization unsuccessfully implements international accountability in a uniform manner that does not align with the cultural context of developing countries. Such was the case in the DRC where a disproportionate focus on sexual violence in peace processes had the unintended consequence of elevating it to an “effective bargaining tool for combatants” (Autesserre, 2012). Efforts to secure true transitional justice must be reformed to prioritize victim support on the same level as criminal prosecution, utilizing context-specific means that actually help, not harm, survivors.

Such unintended consequences of the ICC raise the importance of another actor: the need for civil society intervention to ensure accountability for victims. The current reporting period for most wartime SGBV datasets only keeps active records of five years post-conflict and relies heavily on physical evidence (Cohen and Nordas, 2014). Given the substantial shame and stigmatization associated with reporting, five years is simply not enough time; much of the physical crime scene evidence is often gone by the time victims come forward, resulting in the onus being placed entirely on victims’ testimony (Chinkin, 2001). Such issues were evident during the 2000 Women’s International War Crimes Tribunal in Tokyo to consider the criminal liability of Japanese soldiers responsible for sexually enslaving comfort women in Asia (Chinkin, 2001). With the Japanese government denying any official responsibility, survivors sought other means of redress and worked with women’s NGOs across Asia to organize the tribunal and finally share their suffering after nearly fifty years. While people’s tribunals cannot impose sentences or order reparations, they can make recommendations backed by legal findings and moral force and can gather evidence and witnesses to testify. Lack of enforcement by international actors thus forces civil society to intervene and enforce justice where states do not, resulting in persisting impunity and undue burden on victims themselves.

In the absence of international accountability, civil society and local nongovernmental organizations (NGOs) play an important role in helping secure justice for victims. By gathering evidence, providing victims with necessary resources and support, and pressuring the government to intervene, local NGOs can bring justice home without support from the broader international community. The successful influence of civil society intervention was evident in the DRC, where strong NGOs played a critical role in shaping human rights practices in local courts and ensuring that SGBV cases were given top priority (Lake, 2018). Such prioritization resulted in increased reporting and convictions for SGBV in the DRC, ultimately demonstrating that local NGOs may be key to instilling accountability for wartime sexual violence in politically fragile countries (Lake, 2018).

So, What Does All This Mean for Putin?

The very fact that the ICC issued a warrant for Putin’s arrest demonstrates the international community’s evolution from a position of apathy to one of accountability in addressing war crimes. And yet, persisting unintended consequences continue to hamper full enforcement, making it unlikely that Putin will ever face criminal charges. Since Russia refuses to sign the Rome Statute, the ICC relies entirely on member states to hand over Putin and Lvova-Belova for indictment. This is highly improbable, especially since Putin is now less likely to travel abroad to countries party to the Rome Statute. This may ultimately inhibit peace negotiations and prolong the war in Ukraine (McAllister and Krcmaric, 2023). Russian war crimes will likely continue and may even worsen in response to the ICC warrants, as suggested by Russian authorities who have already signaled that more deportations are forthcoming (McAllister and Krcmaric, 2023). The onus of achieving accountability for wartime SGBV will thus remain on Ukrainian civil society and suffering civilians who have already borne the brunt of the war.

In the absence of international accountability and lack of enforcement by the ICC, Ukrainian civil society and transnational NGOs can take steps to help victims of SGBV in the meantime. While support for an international criminal tribunal is building, NGOs can begin identifying SGBV victims and providing them with necessary resources such as medical care, psychological counseling, refuge, and legal and financial support. Supporting victims and encouraging them to report is crucial, as many cases are likely going unreported due to fear and stigmatization precluding victims from coming forward. Vulnerable women and children refugees are fleeing war zones before reporting, and many are ultimately subjected to greater threats of sexual violence and trafficking while traveling alone (Taylor, 2022). Strengthening efforts to identify, assist, and prepare victims to testify must therefore be the top priority. Transnational NGOs can also work with local law enforcement and courts to challenge existing gender stereotypes and prejudice surrounding SGBV and ensure access to justice for victims. By pressuring domestic judicial systems to begin investigating and prosecuting perpetrators now, Ukrainian civil society can begin securing justice for victims independent from lagging international accountability. 

In conclusion, Putin’s probable impunity signifies the need to revisit international accountability for wartime sexual violence and related crimes and highlights the importance of civil society intervention. Until substantial reforms are enacted to bolster the ICC’s enforcement capacity, true international accountability will remain a fantasy.

By Katrina Mulherin

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