The International Criminal Court has now launched an investigation into actions in Ukraine at the request of 39 countries. This is an important step in the global condemnation of the Russian invasion.
Individual states, the European Union and the African Union have been lining up to condemn Russian president Vladimir Putin. Leaders, including Prime Minister Boris Johnson, have already accused Putin of war crimes while backing the ICC’s investigation.
Some experts have highlighted the difficulties of using international law to condemn Russia, and the investigation will examine the actions of all parties involved in the conflict. But the ICC does have the ability to charge Putin with war crimes if it finds evidence he has committed them.
However, it is extremely difficult to prove intent to commit war crimes. So difficult, that only six people have been convicted by the ICC and served sentences.
International humanitarian law is based on the principles of humanity, necessity, distinction, and proportionality. A war crime is when civilians are not distinguished from military troops, when harm for civilians is not minimised, and when there is unnecessary destruction, suffering and casualties.
In order to indict someone, the ICC prosecutor must prove that the alleged crimes are atrocity crimes: genocide, crimes against humanity or war crimes. The prosecutor determines gravity by looking at the scale, nature, manner and impact of the alleged crimes.
ICC investigations can take years, but prosecutors have several advantages in this case that could lead to a faster process. First, the ICC has been looking into alleged war crimes in Ukraine since 2014, when then-prosecutor Fatou Bensouda launched a preliminary investigation. In 2015, she extended the scope to include any alleged crimes committed from February 20, 2014 onwards.
In 2020, she said there was a reasonable basis to believe that three types of crimes were committed: those committed in the context of the conduct of hostilities, those committed during detentions and those committed in Crimea. Now the current ICC prosecutor, Karim Khan, is opening the investigation proposed by his predecessor, and broadening it to include the recent invasion into Ukraine.
Second, new technologies make it easier to gather evidence such as images and recordings of events, along with testimonies of victims and witnesses. The ICC will receive the extensive evidence gathered by organisations such as the Bellingcat investigative journalism agency. Evidence from Ukrainian citizen’s mobile phones will also be available.
Arresting Putin?
Once enough evidence is found to establish reasonable grounds that atrocity crimes were committed, the prosecutor may request an ICC chamber issues an arrest warrant for the person allegedly responsible. This could force the individual to appear at trial, ensure they do not obstruct the investigation and prevent them from continuing to commit atrocities.
If the ICC issued an arrest warrant against Putin, he would be unable to travel to the 123 states party to the ICC for fear of arrest – other states could also decide to hand him over.
But an arrest warrant is not a guarantee of conviction. And it is difficult to link a sitting head of state directly to offences committed by armed forces on the ground.
In 2011, the ICC issued an arrest warrant for Laurent Gbagbo, former president of the Ivory Coast, for four counts of crimes against humanity committed in 2010 and 2011. He was transferred to the Hague the same year. His trial started in 2016 and he was acquitted three years later.
The ICC found that the evidence submitted in Gbagbo’s case was “not enough to support a conviction”. The prosecution did not show that Gbagbo had a “policy” to attack a civilian population, or a “common plan” to keep him in power by committing crimes against civilians. It did not prove that Gbagbo’s speeches contributed to the crimes committed in the post-election violence.
Past Precedent
In addition to Gbagbo, the ICC has launched arrest warrants against only two other sitting or recently ousted heads of state, and neither were indicted. Sudanese president Omar al-Bashir was the first sitting head of state to be issued with an ICC arrest warrant. Since 2009, he has been wanted for crimes against humanity, war crimes and genocide in Darfur in Sudan.
In 2020, Sudan’s ruling military council agreed to hand him over to the ICC. However, the Sudanese government has now agreed to set up a special court on war crimes in Sudan, and the scope of the court’s investigation would include Bashir.
In 2011, the ICC issued an arrest warrant for the leader of Libya, Muammar Gaddafi, for crimes against humanity and war crimes. He was murdered before he could face trial.
If there is ultimately a regime change in Russia, Putin could still be handed to the ICC, or as with Bashir in Sudan, Russia could set up its own court to investigate alleged war crimes in Ukraine.
This is an unusual legal case because neither Ukraine nor Russia are signatories to the ICC. But Ukraine has made two declarations to the ICC giving the court ad hoc jurisdiction for war crimes committed in Ukraine.
In states where the ICC exercises its jurisdiction, it does so over crimes regardless of the nationality of persons who have committed them, even if they are citizens of states not party to the ICC, so they can investigate Putin.
Ukraine is also pursuing another avenue to hold Russia accountable for the crime of aggression through the International Court of Justice, which has scheduled public hearings. This UN court deals with disputes between countries, and so would not result in any criminal charges against Putin the individual.
Given the escalating situation in Ukraine with many deaths of civilians and children, state leaders worldwide must ensure the ICC has the funding and capacity to pursue its investigations. The widespread opposition of 141 states at the UN General Assembly is a clear signal to Putin that he could face personal accountability for this invasion.
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