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.
The ICC is a permanent international criminal court based in The Hague. Its legal basis is the Rome Statute of 1998 and it is responsible for four core crimes: genocide, crimes against humanity, war crimes and crimes of aggression.
The members of the court include 123 countries. Russia and Ukraine are omitted as they signed the statute but did not ratify it.
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.
“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.
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.
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.
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.
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?
“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.