Never say never? The ICC, Putin and Ukraine

by Rachel Kerr

On 1 March 2022, the Chief Prosecutor of the International Criminal Court, Karim Khan, QC, announced that he was able immediately to open an investigation into the situation in Ukraine.  Earlier the same week, Khan had indicated that he was seeking authorisation to do so, and suggested that it could be expedited if the Court were to receive a referral from a State Party.  That referral was forthcoming, and it was both quick and the mandate was clear: 38 States Party submitted a collective referral and Lithuania submitted its own.  This is a hugely significant and historical moment for international law and politics.

First, and most obviously, it puts Russian forces and the Russian Government on notice that not only is the world watching their conduct in Ukraine, but that alleged war crimes will be investigated and indictments issued if there is evidence to warrant them.  Of course, we cannot be certain that trials will follow – that will depend on the willingness of the Russian Government to extradite its citizens to stand trial in The Hague.  As Gerry Simpson has said, we are not going to see Putin in The Hague next Tuesday, but this move has increased the likelihood that we may see him, his generals, and other senior members of the Kremlin there in the not too distant future.  A lot has to happen to make that possible, but the fact that the ICC has both the jurisdiction to investigate, and the backing of at least a third of its States Party has moved the dial considerably. 

Second, it is an opportunity for the ICC to demonstrate its value.  The Court has suffered from a number of flaws and mis-steps – some of its own making and some as a result of the international political context in which it operates.  These have been well-rehearsed elsewhere.  Suffice to say, the ICC, in seizing the initiative, now finally has its moment to shine and to realise its potential as a bastion of justice and humanity.  In the past, there has been a need to improvise responses to situations where either there was no permanent International Criminal Court (as in 1992 in former Yugoslavia and in 1994 in Rwanda) or where there was no realistic prospect of the Court being able to assert jurisdiction (as in Syria). Here, we have the ICC finally being able to do what it was set up to do – to respond rapidly and effectively, with state support, to real-time allegations of war crimes.

Third, the referral suggests that the Court will have the material and logistical support of its member states, something that it not always forthcoming.  As stated above, 39 of 123 States Party referred the situation in Ukraine for investigation.  That has never happened before.  It may seem like a technical point, but it is significant symbolically and practically.  The mechanisms through which the Court can exercise jurisdiction are: a) the Prosecutor initiates a ‘preliminary examination’ and then if there is sufficient evidence to provide reasonable grounds for an investigation, he must seek permission from the Judges to open one; b) a State Party to the Rome Statute (the treaty that established the Court) can refer a situation for investigation – and in that case an investigation can immediately be opened without the need to request permission; or c) the Security Council can refer a situation to the Court if it determines that it would be in the interests of international peace and security for it to investigate.  Clearly, c) was never going to happen, given that Russia is a Permanent Member of the Security Council and would veto any such referral.  The Prosecutor was proceeding at the start of the week with a), and looking at the prospect of a wait of weeks or months for approval.  An earlier request, submitted in December 2020, to open an investigation into the situation in Ukraine since 2013, was still under consideration over a year later.  So, the referral, option b), had the significant benefit of expediting things, allowing Khan immediately to open a full investigation and even to send investigators to gather evidence ‘in real time’.  The benefit of this cannot be over-estimated.

Why didn’t Ukraine simply refer itself?

In other cases where there have been state referrals (Central African Republic, Uganda, Democratic Republic of the Congo, Mali), it has been the state where the alleged crimes have taken place who has referred the situation.  There have not, until now, been any situations where a state has referred the situation in another state to the Court.  Ukraine was not in a position to self-refer as it is not a State Party to the Rome Statute. However, it had already twice lodged an agreement with the Court, accepting its jurisdiction over its territory, first for the period 2013-14 and then from 2014 onward, following the Russian invasion in Crimea.  So, while Ukraine could not refer its own situation, the ICC did not have to rely on a Security Council Resolution, which would have otherwise have been necessary, as in the case of Darfur, Sudan and Libya, where the Security Council asserted jurisdiction via a Chapter VII resolution.

Why ‘only’ war crimes, not aggression?

While the ICC has jurisdiction for the crime of aggression, this is subject to strict limitations.  Aggression was added to the Court’s roster of crimes in 2010 at the Kampala Review Conference but it is only applicable to states that have expressly accepted and ratified the amendments, unless the Security Council makes a referral, acting under Chapter VII.  That is unlikely to happen in this case, for the reasons outlined above – i.e. Russia would veto any such referral.

However, it is entirely possible that, subject to evidence that the thresholds for context have been met, that the ICC will investigate allegations of crimes against humanity and genocide, over which it does have jurisdiction.  Right now, based on the evidence currently available, war crimes charges appear most appropriate, although in respect of the earlier conflict, the preliminary investigation detailed suspected widespread killings and torture in Crimea and attacks on civilians, torture, murder and rape in eastern Ukraine.  Allegations of war crimes committed by Russian forces in the current war focus on deliberate targeting and/or indiscriminate killing of civilians, and destruction of civilian objects with missile attacks and heavy artillery.  So far, two million people have been forced to leave their homes, and over one million have sought refuge in neighbouring countries.

Will it act as a deterrent?

International judicial intervention does not have a strong track record as a deterrent, but the circumstances have never been as compelling as they are now.  In the Yugoslav War, an international tribunal was established while the fighting was ongoing but, while it may have encouraged some to take more care to cover their tracks, it did not have a palpable deterrent effect on the commission of crimes.  Indeed, the siege of Sarajevo, with its attendant terrorising and attacks on the civilian population and the worst single massacre of the war, the genocide carried out in Srebrenica in 1995, occurred after the Tribunal was up and running and issuing its first indictments.  Equally, there is no evidence of a strong general deterrent effect from the ICC – the Court was created in 1998 and started operating in 2002, since which time we have witnessed time and again widespread atrocities and an enduring sense of impunity for them. 

Will Putin end up in The Hague?

The million ruble question is whether this road will lead to Putin ending up in The Hague, on trial at the ICC?  Or whether the ICC’s investigations will spur criminal prosecutions in domestic courts in Russia, which would be ‘positive complementarity’ in action?  The benefit of domestic trials is that, aside from being closer and more visible, it would open the possibility of prosecution for the crime of ‘waging aggressive war’ according to Article 335 of Russia’s criminal code.  On the other hand, if there is a change in leadership, they may find it more expedient to remove Putin and his collaborators to The Hague.  In 1995, it seemed almost impossible to imagine that the architects of the Yugoslav War and genocide in Bosnia would appear at the Hague, but, eventually, a number of them did, including the former President of Serbia, Slobodan Milošević, and the Bosnian Serb political and military leaders, Radovan Karadžić and Ratko Mladić.  So, while we are certainly not going to see Putin on trial next Tuesday, or even next month, never say never!

With thanks to James Gow, Natasha Kuhrt and Maria Varaki.