“You saw what happened in Bucha,” Biden told reporters Monday. “We have to gather the information. “We have to know all the details, so that this is real, to do a war crimes trial,” Biden said, calling Putin a “war criminal.” While war crimes can be tried in national courts, investigators from the International Criminal Court (ICC) are already working in Ukraine to gather and review evidence, and some nations have already referred the case to the world court, signaling a strong impetus to try such crimes. But it is not as simple as filing a case in a courthouse. 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 are parties to the ICC, although Ukraine recognizes the jurisdiction of the tribunal so that the tribunal can prosecute those responsible for the atrocities committed committed in Ukraine. The ICC itself is based in The Hague, the Netherlands, but has 123 Member States worldwide. The court’s jurisdiction is to try serious crimes such as war crimes, genocide, crimes against humanity – collectively known as crimes of atrocity – and aggression, but it is not intended to replace national courts, explained Kelebogile Zvobgo, Assistant Professor William & Maria. “It is a court of last resort,” he told Vox. “The court has jurisdiction only over parties who are unwilling or unable to investigate or prosecute their own cases.” Given the fact that the Russian government denies from the outset that it is waging war in Ukraine, much less committing atrocities there, the ICC could be the appropriate mechanism for Kremlin officials to take responsibility. But the ICC is not the only way to pursue atrocities for atrocities, and there is no guarantee that Putin or any of his top aides will ever be tried.
A permanent international tribunal 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, where 160 different governments convened to consider an international criminal court – secured the ICC as the first permanent international tribunal; entered into force in 2002, after 60 countries had ratified the Rome Statute. The ICC has permanent, professional and impartial staff and operates in coordination with the United Nations, although it is an independent body. Prior to the tribunal, there were mechanisms for prosecuting crimes of international interest, most notably the Tokyo and Nuremberg tribunals after World War II. These took place before the Geneva Conventions were ratified and were the first known international crime trials to take place during the conflict. But these trials were not immune to criticism, including their expediency as well as concerns about a sense of bias or “justice for the winners,” Zvobgo said. Later courts, such as the United Nations International Criminal Tribunal for the former Yugoslavia, which is prosecuting the ethnic cleansing of Albanians in Kosovo under former Serbian President Slobodan Milošević, the Special Court for Sierra Leone of this nation, and the Extraordinary Divisions in the courts of Cambodia, which prosecuted the crimes of the Khmer Rouge, operated in cooperation or under the auspices of the UN. Individual countries can also prosecute individuals for crimes that fall under universal jurisdiction, such as crimes of cruelty. More recently, German courts have been able to secure convictions of two Syrian military leaders for crimes committed against Syrians in Syria – crimes that technically did not concern Germany at all, but because they were so blatant and so offensive to the international order. fall under universal jurisdiction. Unlike other international courts, such as the European Court of Human Rights, the ICC can only try individuals and not nation-states. This theoretically involves incumbent heads of state, although this has never happened in the 20-year history of the tribunal and is unlikely to happen in the context of Russia’s invasion of Ukraine. The court has no enforcement mechanism, so while it can issue arrest warrants, it relies on national authorities to enforce those warrants. “There are many fugitives from the ICC,” said Zwobgo, including former Sudanese dictator Omar al-Bashir, who escaped arrest in South Africa, which signed the Rome Statute in 2015. In all, the defendants in 11 cases of the ICC remain free. The court, however, has seen 30 cases, with 10 convictions and four acquittals. This may not seem like much, but given how difficult it is to create the kinds of cases prosecuted by the ICC and the ability of many defendants to avoid arrest and trial, it is important. It’s also a sign that countries are pursuing their responsibilities under the Rome Statute, and conducting their own investigations and prosecutions for atrocities, Zvobgo told Vox, citing a case in Colombia in which the ICC closed a preliminary investigation into serious crimes. of international interest – including the thousands of alleged extrajudicial killings that took place over five decades of armed conflict – after deciding that the Colombian government could conduct its own investigation and trial.
Prosecution of Putin may 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 arrest warrants, Putin could avoid arrest as long as he remains in Russia or other friendly nations – and in power. “I do not really see the mechanism for Putin’s criminal responsibility,” Zvombo told Vox. “I do not think the United States and its allies are likely to take Putin,” he said, noting that he could set a “catastrophic precedent” and allow Russia or any other country to use international justice in retaliation. their opponents. In addition, there is little precedent for the current effort of Heads of State. The only time this happened was when Milosevic was tried and charged with atrocities in Kosovo in 1999 in a special court convened by the United Nations. However, the ICC and other international tribunals have indicted former heads of state, such as former Liberian President Charles Taylor and former Chadian President Hissen Hambre. Another complicating factor is that one of the most vocal nations proposing that Putin be tried in The Hague – the United States – is not part of 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. Former President George W. Bush in 2002 warned then-Secretary-General Kofi Annan that the United States would not ratify the Rome Statute and would not abide by any of its provisions. “It really shows a lot of hypocrisy” and encourages the perception of “justice for you, not me”, Zvombo noted. In 2020, the United States was under investigation by the Afghanistan War Crimes Tribunal, prompting former President Donald Trump to impose sanctions on then-Gambian Prosecutor Fatou Bensunda and senior prosecutor Phakiso Mochochoko, a diplomat. Even if it were possible to bring Putin to The Hague, the ICC could not prosecute him for one of the most critical crimes – aggression – for which he is clearly responsible. This is because the ICC can only try crimes of aggression, which are defined as “the planning, preparation, initiation or execution of an individual capable of effectively exercising control or directing the political or military action of a State; an act of aggression which. . . constitutes a clear violation of the Charter of the United Nations “, according to the Rome Statute, if these countries are signatories. Neither Russia nor Ukraine is. Linking Putin to other alleged war crimes in Ukraine, such as indiscriminate killing of non-combatants, targeting civilian facilities such as train stations and hospitals, and sexual violence, is a huge undertaking and requires well-founded evidence – or evidence trusted witnesses. closely guarded – linking the actions of soldiers on the ground with officials in the Kremlin. “These things take a long time,” Zvobgo told Vox, “and they do not necessarily lead to a guilty verdict.”
