The bombing of a train station in Ukraine, where many were gathered to evacuate. The murder of countless civilians in Bucha and other areas. As evidence of Russian atrocities against Ukraine emerges, calls are growing to bring the perpetrators to justice – including from US President Joe Biden, who recently said Vladimir Putin should be prosecuted for war crimes.
“You saw what happened in Bucha,” Biden told reporters Monday. “We have to gather the information … and we have to get all the details so this can be an actual, get a war crimes trial,” Biden said, calling Putin “a war criminal.”
Although it is possible to try war crimes in national courts, investigators from the International Criminal Court (ICC) are already working in Ukraine to gather and examine evidence, and a number of nations have already referred the case to the Global Court, signaling a strong push. to bring such crimes to justice.
But it is not as simple as filing a case in a court of law; there are practical and political limits to what the ICC can do in any of the crimes it investigates and prosecutes. Among these challenges in this case is the fact that neither Russia nor Ukraine is a party to the ICC, although Ukraine recognizes the jurisdiction of the court so that the court can prosecute those responsible for atrocities committed in Ukraine.
The ICC itself is based in The Hague, the Netherlands, but it has 123 member nations worldwide. The court’s mandate is to try serious crimes such as war crimes, genocide, crimes against humanity – collectively known as atrocities – and aggression, but it is not intended to replace national courts, explained Kelebogile Zvobgo, assistant professor of government at the College of William & Mary. “It’s a last resort,” she told Vox. “The court has jurisdiction only in places where they are unwilling or unable to investigate or prosecute their own cases.” Given the fact that the Russian government refuses to wage war in Ukraine in the first place, much less to commit atrocities there, the ICC could be an appropriate mechanism to hold Kremlin officials accountable. But the ICC is not the only way to seek justice for atrocities, and it is far from guaranteed that Putin or any of his high-ranking staff will ever be brought to justice.
A permanent international court is still relatively new
Although the idea of a permanent international criminal court dates back to 1870, the ICC was not established until 1998. The Rome Statute, a product of the UN Rome Conference, in which 160 different governments met to consider an international criminal court, established the ICC as the first permanent international court. It entered into force in 2002, after 60 countries had ratified the Rome Statute. The ICC has a permanent, professional and impartial staff and works in coordination with the UN, although it is an independent body.
Prior to the establishment of the court, there were mechanisms to try crimes of international interest, in particular the post-World War II Tokyo and Nuremberg courts. These were carried out before the adoption of the Geneva Conventions and were the first known international trials for crimes committed during conflict. But these lawsuits were not immune to criticism, including about their expediency as well as concerns about a sense of bias or “the justice of the victors,” as Zvobgo said.
Later courts, such as the United Nations International Criminal Tribunal for the former Yugoslavia, which are pursuing the ethnic cleansing of Albanians in Kosovo under former Serbian President Slobodan Milosevic; the Special Court of Sierra Leone, which prosecuted those responsible for the country’s brutal civil war; and the extraordinary chambers of the courts of Cambodia, which prosecuted the crimes of the Khmer Rouge, functioned in conjunction with or under the auspices of the United Nations.
Individual countries can also prosecute individuals for crimes that fall under universal jurisdiction, such as atrocities. Most recently, German courts were able to secure convictions of two Syrian military officials for crimes committed against Syrians in Syria – crimes that technically did not involve Germany at all, but because they were so serious and a violation of international order, fall under universal jurisdiction.
Unlike other international courts, such as the European Court of Human Rights, the ICC can only judge individuals, not nation states. It includes theoretically sitting heads of state, although this has never happened in the 20-year history of the court, and it is unlikely that it will happen in connection with Russia’s invasion of Ukraine. The court has no enforcement mechanism, so although it can issue arrest warrants, it is dependent on national authorities to execute those arrest warrants. “There are many refugees from the ICC,” said Zvobgo, including former Sudanese dictator Omar al-Bashir, who in 2015 escaped capture in South Africa, a signatory to the Rome Statute. In all, defendants in 11 ICC cases remain at large.
However, the court has seen 30 cases with 10 convictions and four acquittals. It may not seem like much, but given how difficult it is to build the kind of cases that the ICC prosecutes, and the capacity that many defendants have to evade capture and trial, it is important. It is also a sign that countries are following up on their responsibilities under the Rome Statute and holding their own investigations and prosecutions for atrocities, Zvobgo told Vox, citing a case in Colombia where the ICC closed a preliminary investigation into serious crimes . of international concern – including thousands of alleged extrajudicial killings that took place over five decades of armed conflict – after establishing that the Colombian government could conduct its own investigations and trials.
Prosecuting Putin could be impossible
The ICC does not try defendants in absentia or if they are not present in court. And because the court does not have a mechanism like a police force to enforce its arrest warrants, Putin can evade capture as long as he stays in Russia or other friendly nations – and in power.
“I do not really see the mechanism for holding Putin criminally responsible,” Zvobgo told Vox. “The United States and its allies, I do not think it is possible that they will seize Putin,” she said, noting that it could set a catastrophic precedent and enable Russia or any other country to use international justice to retaliate. their opponents.
Plus, there’s a bit of a precedent for trying on incumbent heads of state. The only time this has happened is when Milošević stood trial and was charged with atrocities in Kosovo in 1999 in a special court convened by the UN. However, the ICC and other international courts have indicted former heads of state, such as Liberia’s former president Charles Taylor and former president of Chad Hissène Habré.
Another complicating factor is that one of the most vociferous nations proposing Putin to stand trial in The Hague – the United States – is not himself a party to the ICC. The US government voted against the ICC during the 1998 Rome Conference; Former President Bill Clinton signed the Rome Statute in 2000, but never submitted it to Congress for ratification. In 2002, former President George W. Bush announced to then-UN Secretary-General Kofi Annan that the United States would not ratify the Rome Statute and would not have to comply with any of its provisions.
“It really shows a lot of hypocrisy,” and encourages the notion of “justice for you, not for me,” Zvobgo remarked. In 2020, the United States was under investigation by the ICC for war crimes in Afghanistan, prompting former President Donald Trump to pursue sanctions against then-ICC prosecutor Fatou Bensouda of Gambia and senior prosecutor Phakiso Mochochoko, a diplomat from Lesotho.
Even if it were possible to bring Putin to The Hague, the ICC could not try him for one of the most critical crimes – aggression – for which he is clearly responsible. This is because the ICC can only prosecute aggression crimes, defined as the “planning, preparation, initiation or execution of a person capable of effectively exercising control over or directing the political or military actions of a state, by an act of aggression which… constitutes a manifest violation of the Charter of the United Nations, “according to the Rome Statute, if the countries concerned are signatories. It is neither Russia nor Ukraine. Linking Putin to other reported war crimes in Ukraine, such as the arbitrary killing of non-combatants, targeting civilian facilities such as train stations and hospitals and sexual violence, is a massive undertaking and requires documentation – such as specific orders or testimony from insider witnesses that are close guarded – connects soldiers’ actions on the spot with Kremlin officials. “This just takes a long time,” Zvobgo told Vox, “and it does not necessarily end in a guilty verdict.”