Can international courts of justice arrest Vladimir Putin and one day put him in the dock?
The International Criminal Court and the International Court of Justice have already been seized of the case of the invasion of Ukraine by its powerful neighbor Russia. Experts consulted by The duty explain the powers but also the limits of these courts established in the hope of preventing wars.
Just days after the invasion began, the International Criminal Court has opened an investigation into possible war crimes and crimes against humanity allegedly committed in Ukraine, as videos circulating around the world show images of dead civilians trying to escape Russian bombs or burning civilian buildings, such as a hospital.
The International Criminal Court (ICC) can hold individuals accountable for crimes — unlike the International Court of Justice (ICJ), which handles disputes between states.
It activated its investigative powers very quickly, in order to be able to demonstrate “beyond any reasonable doubt” that war crimes had been committed. But collecting evidence, “in a country in conflict, it is difficult”, underlines from the outset Me Pascal Paradis, the director general of Lawyers Without Borders Canada.
“But this is not a step that can prevent tanks from entering Ukraine,” he explained on the phone, while he was in El Salvador.
And it’s not tomorrow either that results can be obtained. Several months may pass before the indictment, continues the law professor at Laval University, Fannie Lafontaine.
The ICC can charge individuals who pressed the button on the missile launcher, but also those who commanded military operations, such as state leaders. One of the Court’s objectives, however, is to target “the highest officials”, namely political leaders and senior army officers, says the professor.
“We don’t want the soldier in the tank, but one of the difficulties is obviously going up the chain of command. »
And how to arrest those responsible? This is where the shoe pinches, agrees Me Paradis. “The Court has no police, it cannot arrest itself. »
It is therefore difficult to imagine that the Russian president is accused, believes Professor Lafontaine. A trial cannot proceed in the absence of a defendant and as long as the president remains in Russia and remains in power, he will not end up in court in The Hague, she said.
In short, in the short term, it is “unlikely”.
Except that a leader can possibly be handed over to the Court to be tried there after a change in power: “the political contexts change but the justice remains the same”, underlines Ms. Lafontaine.
Until then, one can imagine that the countries which rally behind Ukraine will help the investigation on the ground of the Court. This has been requested by almost 40 states: “It’s unusual, it’s the first time that there are so many. »
And then, the process is not useless: it has already led to arrests and convictions. One can think of the Serbian leader Ratko Mladic nicknamed the “butcher of Bosnia” and the former Congolese warlord Bosco Ntaganda.
Order to cease hostilities
On Wednesday, in The Hague, the Netherlands, the International Court of Justice must render an important decision: Ukraine has asked it to order Russia to cease all armed hostilities on its territory, and to put an end to all act of genocide.
If it works, “it would be a victory for Ukraine”, judges the professor of law at the University of Montreal, Bruno Gélinas-Faucher, although he doubts it. The Court has jurisdiction under the Convention on the Prevention and Punishment of the Crime of Genocide of the United Nations, and not on any use of force. He expects a more vague order, such as enjoining the parties to cease any activity likely to aggravate the dispute.
According to him, it is also unlikely that Russia will decide to comply with this order voluntarily. The ICJ also has no police to enforce it.
In such a situation, Ukraine will have no choice but to ask the UN Security Council to intervene, but Russia has a right of veto allowing it to block any attempt in this direction.
rogue state
If there are therefore limits to the powers of international courts, and not necessarily “immediate effect” to their orders and judgments, there is nevertheless a very real “intangible effect”, believes Me Paradis: “there is a whole the question of the reputation of States, of their credibility on the international scene”. To promote international trade, a state has an interest in demonstrating some sort of stability and respect for the word given, he argued.
If you become a “rogue state”, which does not respect its obligations, others will not want to deal with you, illustrates Me Paradis.
Professor Lafontaine also believes that the judgments of the ICC can have a deterrent effect, recalling that its role is to repress the crimes that have been committed. “But stopping the war is a lot to expect from the courts”.