Can 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 it will launch an investigation into possible crimes in Ukraine. How likely is it that Putin or other Russian political or military leaders will be brought to justice, and what are the obstacles that need to be overcome for this to happen?

What crimes are prosecuted by the ICJ?

There are four offenses that the ICJ prosecutes: war crimes, crimes against humanity, genocide and the crime of aggression. The Chief Prosecutor of the ICJ, Karim Khan, said had a reasonable basis for believing that war crimes and crimes against humanity had been committed in Ukraine. War crimes include intentional homicide, intentional infliction of great suffering, widespread destruction and misappropriation of property, and deliberate targeting of civilians 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 signatories to the ICC?

Khan said that since Ukraine was not a party to the Rome Statute establishing the ICC, it could not refer to the alleged crimes itself, but had twice before acknowledged the jurisdiction of the courts, including when Russia invaded Crimea in 2014, and in the second case she had accepted jurisdiction on an open basis. So Ukraine can not refer to the alleged crimes themselves, but the ICJ has jurisdiction over crimes committed on its territory.

Russia withdrew from the ICC in 2016 after the court published a report classifying Russian annexation of Crimea as an occupation. At first glance, proving that Russia committed the crime of aggression would seem straightforward. The definition includes invading another state, bombing and blocking ports. However, if a state is not a party to the ICC, its individuals cannot be prosecuted in court for this specific offense. The only exception is that the UN Security Council may refer a non-party to the ICC for the crime of aggression, but Russia, as a permanent member of the council, has the right to veto, so this will not happen. .

But there is no similar bar that would prevent charges of war crimes, crimes against humanity and genocide against a non-signatory such as Russia.

How likely is it that Vladimir Putin or anyone else involved in the occupation of Ukraine will stand trial for war crimes and / or crimes against humanity at the ICC?

It is much more difficult to link a political leader directly to the acts committed by the armed forces on the basis required for these two acts than to do so for the most comprehensive offense of the crime of aggression. Even if Putin were to be indicted, he would have to be arrested in a state that unlike Russia recognizes the jurisdiction of the court.

Is there any alternative way in which Putin or others can be brought to justice?

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

Prof Philippe Sands QC, Director of the UCL Project for International Courts and Tribunals, has called for the creation of a dedicated international criminal court to investigate Putin and his accomplices for the crime of aggression, which he believes is the act that best fits Russia’s acts in Ukraine.

Ukraine also has Russia on the International Court of Justice (ICJ) for launching an invasion under the pretext of false genocide allegations made against Russian-speaking countries, though this has been described as a symbolic move because of doubts about its jurisdiction.