'Symbolic' Putin indictment gets some EU backing

The ICC said it found "reasonable grounds" that Putin "bears individual criminal responsibility" for the child abductions "for having committed the acts directly, jointly with others and/or through others".

"This is a very strong symbolic, political message that we are really committed to prosecute, investigate the worst crimes, the crimes against humanity, and this is what is happening today in Ukraine," Slovenian foreign minister Tanja Fajon said, arriving at the council meeting in Brussels.

German authorities will arrest Putin if he sets foot in the country in accordance with the ICC warrant, justice minister Marco Buschmann had told the Bild am Sonntag newspaper.

However, it is unlikely that the ICC decision will have many tangible results.

The ICC has no powers to arrest suspects, and can only exercise jurisdiction within its member countries. Russia and Ukraine are not members.

Ukraine, however, accepted ICC jurisdiction over alleged crimes committed on its territory in 2014 after Russia invaded and annexed Crimea.

EU foreign affairs chief Josep Borrell described the ICC move as a "game changer".

In practice, Putin can be arrested by one of the over 130 ICC member states if he travels there.

The court only indicted two sitting leaders so far, Sudan's former president Omar al-Bashir and Libya's Muammar Gaddafi.

Gaddafi was later murdered by his people, and al-Bashir remained in office for another decade until being toppled by a coup, and was prosecuted in Sudan.

While in office, al-Bashir was able to travel to ICC member states Chad, Djibouti, Jordan, Kenya, Malawi, South Africa, and Uganda, which all declined to detain him.

The court does not conduct trials in absentia, so Putin will have to be handed over by Moscow or arrested outside of Russia.

Agression dilemma

The ICC can investigate war crimes, genocide, and crime against humanity, and crime of aggression.

However, the court's jurisdiction over the crime of aggression is limited to states that are party to its founding Rome Statute. Russia is not a party, and its nationals cannot be held responsible for the crime of aggression before the ICC.

The UN security council could enable the court to exercise jurisdiction over the crime of aggression with regards to the situation in Ukraine, but Russia — as a security council member — would veto.

So there is a legal gap, and to fill it, the international community has been locked in negotiations about setting up a special tribunal to prosecute those — top political and military brass — responsible for the crime of aggression.

The crime of aggression is important because it is at the origin of all the other crimes committed in Ukraine — without it the other crimes would not have been committed.

While Ukraine is advocating for a special tribunal with international, UN, backing which would have the largest legitimacy (outside of the ICC structure), the international community and the EU itself is divided on it, as some worry it would not gather enough support in the UN.

But Karim Khan, the prosecutor of the ICC, has been arguing that his court is well-equipped to prosecute the Russian leadership. His headline-grabbing move from last Friday could also be a way to underline his argument.

Khan made his move ahead of a conference in London this week co-hosted by the UK and the Dutch governments aimed at raising cash to fund the ICC's war crimes investigation.

An EU diplomat said negotiations in the EU on the special tribunal are unlikely to be influenced by the ICC's move.

"It is rather symbolic at the moment, it limits president Putin when he travels," said the diplomat, adding that despite the court's decision, discussions within the EU on setting up a special international tribunal to prosecute the crime of aggression, are ongoing.

"We are discussing aggression, the rest is to be dealt with by the ICC," the diplomat added, arguing that the crime of aggression also should not go unpunished.