Will those responsible for the war in Ukraine ever be tried? The Attorney General of the International Criminal Court (ICC), created in 2002 to try the worst atrocities in the world, announced on Wednesday March 2 the opening of an immediate investigation into the situation on the spot, after receiving the green light from 39 ICC states parties.
Briton Karim Khan said to himself “convinced that there is a reasonable basis to believe that alleged war crimes and crimes against humanity have been committed in Ukraine”. But the procedure promises to be long and the appearance of Vladimir Putin one day before this very hypothetical court.
The ICC has jurisdiction to judge the acts committed in Ukraine
Ukraine has not ratified the Rome Statute, the international treaty that founded the International Criminal Court in 1998. It is therefore not a “state party” to the ICC, a condition in theory necessary for an intervention by the ICC. jurisdiction. However, “very intelligently and in a visionary way”, as penalist William Bourdon observesit has twice formally recognized the jurisdiction of the Court for crimes committed on its territory, as provided for in Article 13 of the said Statute.
In April 2014, Ukraine recognized the jurisdiction of the ICC over a period from November 21, 2013 to February 22, 2014. It covers crimes committed before and during the fall of former Ukrainian President Viktor Yanukovych, in particular during crackdown on protests in Maidan Square in Kyiv. In 2015, Ukraine again recognized the jurisdiction of the Court. “The second declaration extended this period indefinitely, to encompass ongoing alleged crimes committed throughout the territory of Ukraine from February 20, 2014,” specifies the prosecutor of the ICC in a press release published Monday, February 28.
The acts committed since the beginning of the Russian offensive on Ukrainian territory can therefore be included in the investigation opened by the Court. “It is a strong signal that the prosecutor sends to Russia, saying that these alleged crimes can fall within the jurisdiction of the ICC”estimated with franceinfo Jeanne Sulzer, lawyer specializing in international criminal law.
But the process is going to be long…
In April 2014, the ICC had already launched the first stage of the procedure for Ukraine, namely a preliminary examination. This phase can be very long. In Colombia, it lasted 17 years, to be finally interrupted. In October 2021, the Court announced that it would not try war crimes and crimes against humanity committed by actors in the armed conflict in this Latin American country. She considered that the justice of the country had done its job via the Special Jurisdiction for Peace, set up within the framework of the agreement signed in 2016 with the guerrillas of the Revolutionary Armed Forces of Colombia (Farc).
“The ICC is a complementary court to national jurisdictions. If prosecutions are initiated at the national level, it does not seize or backtrack.”
Jeanne Sulzer, lawyer specializing in international criminal lawat franceinfo
The ICC only intervenes if national judicial authorities are unable or unwilling to try crimes committed on their territory. In the case of Ukraine, the preliminary examination on the facts of 2014 lasted more than six years. At its end, in December 2020, the predecessor of Karim Khan had affirmed that a “wide range of conduct constituting war crimes and crimes against humanity” had been committed, calling for a full investigation. It has just been opened.
The procedure was accelerated thanks to the green light from 39 States Parties (link in English) : all the members of the European Union, but also Australia, Canada, New Zealand or Switzerland as well as Latin American countries. The latter heard the appeal of the prosecutor, who explained that he needed this support to skip the authorization stage of the Court’s Pre-Trial Chamber – a kind of judicial review -, theUkraine is not a state party to the ICC.
But before leading to a trial against one or more officials, the investigation can take years. “Our work of gathering evidence has begun”, said Karim Khan, adding that the investigation would cover all acts committed in Ukraine “since November 21, 2013”. “It’s like a funnel, it starts very big with the examination of the situation on the territory, then it narrows down to a particular case, enlightened lawyer Jeanne Sulzer. It’s not a magic wand to stop the crimes being committed.”
… and an appearance by Vladimir Putin remains very hypothetical
Karim Khan assured that his investigation would be carried out “objectively and independently”. This procedure “does not specifically target Vladimir Putin”, recalls the lawyer Jeanne Sulzer. It is only after these investigations, if they establish the responsibility of the Russian president, that “the ICC could issue an arrest warrant against him”confirms his colleague Aude Rimailho to franceinfo.
However, the game would still be far from won. Since the Court does not have a police force, it depends on the goodwill of States. However, an extradition of Vladimir Putin seems very unlikely in the current political conditions, Moscow having withdrawn its signature from the Rome Statute. And without the cooperation of another state, which would allow the arrest of the Russian president on its soil, the latter could not be tried for crimes against humanity or war crimes. “The ICC does not try an accused in his absence”recalls Jeanne Sulzer.
One possibility remains: “If Vladimir Putin goes to an ICC state party, he can be arrested”, underlines Aude Rimailho, lawyer specializing in international criminal law. The likelihood of an arrest is slim but very real, especially since war crimes and crimes against humanity are not subject to statute of limitations and politicians cannot invoke their immunity from the International Criminal Court.