Could the International Criminal Court bring Putin to justice for Ukraine? | Russia

The prosecutor of the International Criminal Court (ICC) in The Hague announced this week that he would open an investigation into possible war crimes or crimes against humanity in Ukraine. How likely is Putin or other Russian political or military leaders to be brought to justice and what obstacles need to be overcome for that to happen?

What crimes are prosecuted by the ICC?

The ICC prosecutes four offences: war crimes, crimes against humanity, genocide and the crime of aggression. ICC Chief Prosecutor Karim Khan noted there were reasonable grounds to believe that war crimes and crimes against humanity had been committed in Ukraine. War crimes include intentional killings, deliberately causing great suffering, mass destruction and the appropriation of property, as well as the intentional targeting of the civilian population or objects. Crimes against humanity include murder “committed as part of a widespread or systematic attack directed against any civilian population”.

Is it a problem that neither Ukraine nor Russia are ICC signatories?

Khan said that since Ukraine was not a party to the Rome Statute which established the ICC, it could not refer the alleged crimes itself, but it had already accepted the court’s jurisdiction twice, including when Russia invaded Crimea in 2014, and on the second occasion. he had accepted jurisdiction “without limitation in time”. Ukraine therefore cannot refer the alleged crimes itself, but the ICC has jurisdiction over crimes committed on its territory.

Russia withdrew from the ICC in 2016 after the court issued a report classifying Russia’s annexation of Crimea as an occupation. At first glance, proving that Russia committed the crime of aggression seems straightforward. The definition includes invasion of another state, bombardment and blockade of ports. However, if a state is not a party to the ICC, its individuals cannot be prosecuted by the Court for that specific offence. The only exception is that the UN Security Council can refer a non-party to the ICC for the crime of aggression, but Russia, as a permanent member of the council, has veto power, so that doesn’t happen. will not produce.

But there is no similar prohibition that would prevent charges of war crimes, crimes against humanity and genocide from being brought against a non-signatory like Russia.

What is the likelihood that Vladimir Putin or anyone else involved in the invasion of Ukraine will be tried for war crimes and/or crimes against humanity before the ICC?

It is much more difficult to establish a direct link between a political leader and the offenses committed by the armed forces on the ground – as required by these two offenses – than to do it for the more general offense of the crime of aggression. . Even if Putin were indicted, he would have to be arrested in a state that – unlike Russia – accepts the court’s jurisdiction.

Are there other ways that Putin or others could be brought to justice?

National courts can prosecute individuals regardless of their nationality and where an offense was committed if they have so-called universal jurisdiction laws in place. For example, in January a German court sentenced a former Syrian intelligence officer to life in prison for crimes against humanity committed during the civil war in the Middle Eastern country. In 2015, also in Germany, two Rwandan men accused of leading a rebel group in eastern Democratic Republic of Congo were imprisoned for war crimes. Even Russia has universal jurisdiction laws. However, even if there were an attempt to invoke universal jurisdiction for another head of state, there would still be the daunting hurdle of arresting Putin and bringing him to justice. This would likely require him to be removed from office and then extradited by a new Russian regime with more cordial relations with the international community.

Professor Philippe Sands QC, director of the UCL project on international courts and tribunals, called for the creation of a dedicated international criminal tribunal to investigate Putin and his cronies for the crime of aggression, which he considers the most appropriate offense for Russia’s actions in Ukraine.

Ukraine has also sued Russia in the International Court of Justice (ICJ) for launching an invasion under the pretext of false allegations of genocide perpetrated against Russian speakers in the country, although this was described as a symbolic decision due to doubts on his competence.

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