Putin’s war crimes and what the ICC can do about them

The bombing of a train station in Ukraine where many people were gathered to evacuate. The killing of countless civilians in Bucha and other areas. As evidence of Russian atrocities against Ukraine mounts, calls to bring the perpetrators to justice grow, including from US President Joe Biden, who recently said Vladimir Putin should be tried for war crimes.

“You saw what happened in Bucha,” Biden told reporters on Monday. “We have to collect the information. And we need to get all the details so this can be a real war crimes trial,” Biden said, calling Putin a “war criminal.”

Although it is possible to try war crimes in national courts, the investigators of the International Penal Court (CPI) are already working in Ukraine to collect and verify evidence, and a number of nations have already referred the case to the international tribunal, noting a strong push for bring these crimes to justice.

But it’s not as simple as filing a case in a courthouse; there are practical and political limits to what the ICC can do for all the crimes it investigates and prosecutes. Among these challenges, in this case, is the fact that neither Russia nor Ukraine are parties to the ICC, although Ukraine recognizes the jurisdiction of the Court, so that the Court can prosecute those responsible for the atrocities committed in Ukraine.

The ICC itself is based in The Hague, the Netherlands, but it has 123 member nations worldwide. The tribunal’s mandate is to try serious crimes like war crimes, genocide, crimes against humanity – collectively referred to as atrocity crimes – and aggression, but it is not intended to replace national courts. , has explained Kelebogile Zvobgo, assistant professor of government at the College of William & Mary. “It’s a court of last resort,” she told Vox. “The court only has jurisdiction over places that are unwilling or unable to investigate or prosecute their own cases.” Given that the Russian government denies waging war in Ukraine in the first place, let alone committing atrocities there, the ICC could be an appropriate mechanism to hold Kremlin officials accountable. But the ICC isn’t the only way to get justice for atrocity crimes, and it’s far from guaranteed that Putin or any of his high-level associates will ever stand trial.

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 created until 1998. The Rome Statute — the product of the UN Rome Conference, where 160 different governments came together 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 operates in coordination with the United Nations, although it is an independent body.

Prior to the creation of the court, there were mechanisms to try crimes of international concern, including the Tokyo and Nuremberg tribunals after World War II. These were conducted before the adoption of the Geneva Conventions and were the first known international trials for crimes committed during a conflict. But these trials were not immune to criticism, including over their timeliness as well as concerns about a sense of bias, or “victors’ justice”, as Zvobgo put it.

Later courts, such as the United Nations International Criminal Tribunal for the former Yugoslavia continuing the ethnic cleansing of Kosovo Albanians under former Serbian President Slobodan Milošević, the Special Court for Sierra Leonewho prosecuted those responsible for this nation’s brutal civil war, and the Extraordinary Chambers in Cambodian Courtswho prosecuted the crimes of the Khmer Rougeoperated jointly with or under the auspices of the United Nations.

Individual countries can also try individuals for crimes that fall within their jurisdiction. universal jurisdiction, such as atrocity crimes. More recently, German courts were able to convict two Syrian military leaders for crimes committed against Syrians in Syria – crimes that technically did not involve Germany at all, but because they were so egregious and so contrary to the international order, they come under universal jurisdiction.

Unlike other international jurisdictions, such as the European court of human rights, the ICC can only try individuals, not nation states. This theoretically includes sitting heads of state, although this has never happened in the Court’s 20-year history and is unlikely to happen in the context of invasion. of Ukraine by Russia. The court has no enforcement mechanism, so although it can issue arrest warrants, it relies on national authorities to execute those warrants. “There are many fugitives from the ICC,” said Zvobgo, including former Sudanese dictator Omar al-Bashir, who even escaped capture in South Africasignatory to the Rome Statute in 2015. In total, accused in 11 ICC cases stay away.

The court, however, saw 30 cases, with 10 convictions and four acquittals. This may not seem like much, but given the difficulty of constituting the type of cases prosecuted by the ICC and the ability of many defendants to evade capture and trial, it is significant. It is also a sign that countries are taking responsibility, under the Rome Statute, and carrying out their own investigations and prosecutions of atrocities, Zvobgo told Vox, citing a case in Colombia in which the ICC closed a preliminary investigation in serious crimes of international concern – including thousands of alleged extrajudicial executions that occurred over five decades of armed conflict – after determining that the Colombian government could conduct its own investigations and trials.

Prosecuting Putin might be impossible

The ICC does not try defendants in absentia or if they are not present in court. And because the court lacks a mechanism such as a police force to enforce his arrest warrants, Putin could evade capture as long as he remains in Russia or other friendly countries – and in power.

“I don’t really see the mechanism to hold Putin criminally responsible,” Zvobgo told Vox. “The United States and its allies, I don’t think it’s possible for them to get hold of Putin,” she said, noting that it could set a disastrous precedent and allow Russia or any other country to use international justice to retaliate against their adversaries.

Moreover, there are few precedents for trying sitting heads of state. The only time this happened was when Milošević was tried and charged with atrocities in Kosovo in 1999 by a special tribunal convened by the UN. the ICC and other international tribunals however, indicted former heads of state, such as former Liberian President Charles Taylor and former Chadian President Hissène Habré.

Another complicating factor is that one of the loudest nations suggesting Putin will be tried in The Hague – the United States – is not itself a party to the ICC. The US government voted against the ICC at the Rome Conference in 1998; 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 notified then-Secretary General Kofi Annan that the United States would not ratify the Rome Statute and did not have to abide by any of its provisions.

“It really shows a lot of hypocrisy” and encourages the perception of “justice for you, not for me,” noted Zvobgo. In 2020the The United States was under ICC investigation for war crimes in Afghanistanprompting former President Donald Trump to impose sanctions on ICC prosecutor Fatou Bensouda of The 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. Indeed, the ICC can only judge crimes of aggression, defined as “the planning, preparation, initiation or execution, by a person in an effective position to exercise control or direct political action or military of a State, of an act of aggression which . . . constitutes a clear violation of the Charter of the United Nations”, according to the Rome Statute, if the countries in question are signatories. Neither Russia nor Ukraine is. Linking Putin to other reported war crimes in Ukraine, such as the indiscriminate killing of non-combatants, the targeting of civilian facilities like train stations and hospitals, and sexual violence, is a massive undertaking and requires documentary evidence – like specific orders or testimony from inside witnesses, which are closely monitored – linking the actions of soldiers on the ground to Kremlin officials. “This stuff just takes a long time,” Zvobgo told Vox, “and it doesn’t necessarily end in a guilty verdict.”

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