The International Criminal Court is investigating Russia’s president over possible

war crimes in Ukraine.

A woman holds a sign with the face of Putin and the word 'Genocidal' written in Spanish
during a rally in Buenos Aires, Argentina [Natacha Pisarenko/AP Photo]
By Thomas O Falk
Published On 7 Mar 20227 Mar 2022

INVESTIGATION OPENED

The chief prosecutor of the International Criminal Court (ICC) has announced an

investigation into Russian President Vladimir Putin over possible war crimes
in Ukraine. However, international criminal law has its limits.

Karim Khan, the chief prosecutor of the ICC, has been investigating war crimes and
crimes against humanity in Ukraine since 2014. At the beginning of last week, he
announced that the inquiry should also include “all-new suspected crimes”
committed in Ukraine.

With the investigation launched, it raises one question in particular:

What is the likelihood of Putin ending up before the ICC?

Various legal issues will have to be addressed for this scenario to occur. For instance,
the category of possible war crimes will have to be identified first.

Medical workers trying to save the life of 18-month-old son Kirill, who was fatally
wounded by shelling, at a hospital in Mariupol, Ukraine [File: Evgeniy Maloletka/AP
Photo]

“The ICC will have jurisdiction over three categories of crime in Ukraine – crimes
against humanity, war crimes, and genocide,” Yvonne McDermott Rees, professor at
the School of Law at Swansea University, told Al Jazeera.

“Based on the information we have seen coming out of Ukraine over the last week or
so, there are reasonable grounds to believe that, at the very least, some of the charges
we might see brought in this situation would include crimes against humanity –
crimes such as murder committed as part of a widespread or systematic attack
against a civilian population – and war crimes – these are serious violations of the
law of armed conflict,” she said.

With that said, doubts regarding the ICC’s jurisdiction on this matter have been
omnipresent, considering that neither Ukraine nor Russia is a state party to the
Rome statute.

Jurisdiction granted
However, under the current circumstances, there might be a legal path forward,
nonetheless, McDermott Rees noted: “Even though neither Ukraine nor Russia is
parties to the ICC, the ICC does have jurisdiction over this situation because Ukraine
issued a declaration under Article 12(3) of the ICC Statute granting jurisdiction to the
Court.”

However, even if the jurisdiction were to apply, arguably the most difficult challenge
would be getting Putin in court.

“The ICC does not try defendants in absentia, so the biggest challenge might be
getting Putin to The Hague if an arrest warrant were issued against him. However, it
seems unlikely that many state parties to the ICC Statute would fail to cooperate with
the Court in transferring Putin to the Court if he, or any other defendant in this
situation, travelled to their territory,” McDermott Rees said.

A bloodied mannequin displaying the face of Putin sits amid the audience during a
meeting to discuss ways to help Ukraine at the Ukrainian Culture Center in Los
Angeles, US [File: Etienne Laurent/EPA]

However, there is also another option, Nina HB Jørgensen, barrister and professor of
public international law at the University of Southampton, told Al Jazeera.

“Experience shows that a trial would be unlikely while Putin remains in power, but
the likelihood increases in the event of a future regime change,” she said.

“There are several examples of justice catching up with alleged war criminals, some
of whom have been indicted while sitting presidents,” she said, referring to former
Yugoslav leader Slobodan Milošević and former Liberian leader Charles Taylor.

“Putin and other senior leaders could potentially be linked to the conduct on the
ground through evidence demonstrating that they gave orders or failed to prevent
war crimes when in a superior position with effective control of their forces,”
Jørgensen said.

So far, the theory. Nevertheless, as so often in law, there is an array of procedures

that has to be adhered to before one can even conceivably consider the idea of an
actual trial.

Magnitude, complexity
While the situation has already been assigned to Pre-Trial Chamber II, it does not
mean that criminal charges will be brought against Putin or any other individual
anytime soon, Olympia Bekou, professor of public international law at the University
of Nottingham, told Al Jazeera.

“Criminal investigations of this magnitude and complexity take a long time to

investigate. This is made more difficult in an active war zone where access to
evidence, witnesses and victims might be extremely limited,” she said.

“During the investigation stage, the prosecutor will gather the evidence necessary to
assess if there is reasonable ground to believe that core crimes have been committed
and who allegedly committed them. The Office of the Prosecutor will collect and
examine the evidence and gather testimony from victims and witnesses,” Bekou said.
“The investigation will culminate in either the issuance of arrest warrants against
individuals suspected of committing crimes or a decision not to prosecute due to lack
of evidence. Since the investigation might be quite broad, we should not expect any
arrest warrant, if any, before months,” she said.

An aerial view shows a residential building destroyed by Russian shelling in the

settlement of Borodyanka in the Kyiv region [File: Maksim Levin/Reuters]

However, one of the most consistent calls of criticism against the ICC has been in
regards to its relatively slow process of conducting a case.

“International criminal trials are notoriously slow, and this has attracted
considerable criticism of international criminal justice institutions. However, due to
the fact that international trials typically involve atrocities committed on a mass
scale, cases are more wide-ranging than most national cases because of the
complexity and the high volume of evidence. Hundreds of witnesses have to be
heard, and extensive documentary evidence will have to be evaluated,” Bekou said.

Which leaves one with arguably the most significant and, at the same time, the most
challenging question to answer: What will be the potential outcome of a trial against
Putin?

Vast implications
“At the moment, the likelihood of Putin appearing before the ICC is limited as he is
unlikely to leave Russia in the foreseeable future. It is also hard to determine whether
a complete change in government in Russia will occur soon. Nevertheless, the ICC
investigation might help shed some light on the alleged atrocities that appear to be
committed by the current regime,” said Bekou.

“Nevertheless, prosecuting those higher up in the chain of command is challenging.

Finding linkage evidence that establishes a relationship between the act committed
by military forces on the ground and the criminal responsibility of who has given the
order is not always easy,” she said.

If a verdict was found, the implications could nonetheless be vast, Jørgensen said.

“One possible outcome is the eventual indictment of Putin and/or his senior
commanders and advisers, but a long wait for justice due to the challenges of
apprehending the suspects and bringing them to The Hague. However, early
documentation and preservation of evidence is essential and has inherent value even
if ultimately the road to justice is a long one.”

Indeed, if it were possible to gather sufficient evidence and bring Putin in front of the
court, a guilty verdict would likely be accompanied by a lengthy prison sentence of
several decades, McDermott Rees said.

However, until then, it is a long way ahead.

 - Prosecutor opened investigation
- Jurisdiction – 12 3 declaration given by Ukraine
- War crimes – against armed conflict laws or crime against humany – murder
– systematic and widespread
- Putin can be liable but how in absentia?
- Maybe if there is regime change

What are war crimes and crimes against humanity?

War crimes and crimes against humanity are international crimes of such magnitude
that they shock the conscience of all of humanity.

Examples of war crimes include acts of violence, attacks, and reprisals against
civilians and civilian infrastructure with no military objective, or where an attack
may be expected to cause incidental loss of civilian life or would be excessive in
relation to the concrete and direct military advantage. International law also bans the
use of weapons that fail to discriminate between military objectives and civilians or
civilian objects, like cluster munitions, which are indiscriminate, leaving bomblets
that can explode long after the first impact, killing and maiming for years to come.

Crimes against humanity are part of customary international law and the Rome
Statute of the International Criminal Court, whereas war crimes are codified in
treaties including the 1949 Geneva Conventions.

What types of atrocities in Ukraine could be considered war crimes and

crimes against humanity?

Some of the widespread war crimes and crimes against humanity documented in
Ukraine include summary executions, torture, and the grave abuse of civilians
perpetrated by the Russian military. Other actions that may amount to war crimes
include strikes on houses, cultural properties, hospitals, schools, nuclear power
plants, and kindergartens; and the repeated use of cluster munitions.

Even though the Ukrainian prosecutor general’s office has already opened
investigations into close to 20,000 atrocities and counting, the full scale of these
crimes is far from being fully known.

https://news.un.org/en/story/2022/09/1127691