On 2 March 2022, Karim Khan, the chief prosecutor of the International Criminal Court (ICC), announced that he was opening an investigation of all ‘past and present allegations of war crimes, crimes against humanity or genocide’ committed during the war in Ukraine, which had begun less than a week earlier. Days earlier, his office announced that it already had ‘a reasonable basis to believe crimes … had been committed’. This investigation is the first launched by Khan, a British lawyer elected to an eight-year term as ICC prosecutor in June 2021, and it may be the most important the ICC has ever undertaken. It has received strong international political support, with 39 countries having referred the Ukraine situation to the office of the prosecutor for investigation. But the court finds itself in a difficult position. Khan and the prosecutors in his office know that the ICC’s reputation will suffer if it finds evidence that crimes were committed by Russia but fails to indict senior leaders, possibly including Russian President Vladimir Putin. But its reputation may also suffer if it issues indictments and fails to obtain custody of those indicted. Indeed, since the ICC began operating in July 2002, it has secured the indictment and conviction of only four individuals (all of whom were extradited from countries in Africa). The fact that there is a clear military chain of command leading from Russian units in Ukraine to the Kremlin removes one important obstacle to a prosecution that has served as a stumbling block in other ICC investigations. But there is no mechanism to compel Russia to extradite suspects so that they may be brought to trial. Given these challenges, some have called for the creation of a new international court to concentrate solely on investigating whether Russia’s invasion of Ukraine amounts to a ‘crime of aggression’ (defined as a breach of the United Nations Charter, which prohibits states from using force abroad except for self-defence or under authorisation from the UN Security Council). Moscow, however, will surely veto any effort by other members of the Security Council to create a new UN court. Other international organisations have begun investigating Russian actions, but for now these efforts will proceed alongside the ICC investigation, with the outcome to be determined by the strength of the evidence collected and the future course of the war. Charging options The ICC indicts individuals, not states or organisations. If a panel of three judges determines that there are reasonable grounds to believe that war crimes have been committed, it issues indictments in the form of either a summons or arrest warrant. Trials are held before judges, not juries, and guilt must be established beyond a reasonable doubt. The ICC is not part of the UN, but an independent organisation governed by its 123 members, known as the ‘states parties’ to the Rome Statute of the International Criminal Court negotiated in 1998. Neither Russia nor Ukraine is a member of the court. The ICC can investigate crimes occurring in the territories of its members regardless of who commits them. It can investigate crimes committed elsewhere, but only if ordered to do so by the UN Security Council or by non-members themselves. Ukraine made such an invitation after Russia’s invasion and seizure of Crimea in 2014. The court now has jurisdiction over any crimes committed on Ukrainian territory since 2013. ICC investigations begin when the court declares the existence of a ‘situation’ in a particular country. The prosecutor then investigates crimes regardless of who might have committed them, and indeed, the ICC is examining crimes in Ukraine whether committed by Russian or Ukrainian forces. Investigators have two main tasks: 1) linking crimes and victims to suspects, which usually becomes more difficult with the passage of time, and 2) proving that suspects were part of a command structure, thus implicating high military or political officials. The ICC can issue four types of criminal charges: for 1) war crimes, 2) crimes against humanity, 3) genocide, and 4) crimes of aggression. In the Ukraine investigation, prosecutors will focus on the first two areas, while giving less attention to the third and none to the fourth. War crimes as defined by the ICC refer to crimes committed on the battlefield, while crimes against humanity refer to widespread attacks on civilians (though there may be considerable overlap between these types of crime). To prove that either crime has been committed, prosecutors need to prove that individual crimes were connected as part of a pattern of behaviour by Russian soldiers. More specifically, war-crimes incidents must be ‘part of a plan or policy’, and crimes against humanity must be part of a ‘a widespread or systematic’ attack on civilians. The Rome Statute defines genocide as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. To pursue genocide charges in Ukraine, the ICC would have to provide evidence that there were Russian orders to destroy a segment of Ukraine’s population, prevent Ukrainian births or forcibly transfer Ukrainian children to Russia. Proving intent has been difficult in other ICC investigations of genocide, which suggests that it may not become a focus here. But it is possible that prosecutors will argue that Putin’s comments on 21 February – in which he asserted that Ukraine’s national identity is a historical fiction promoted by its so-called ‘neo-Nazi’ leaders to conceal the country’s Russian character – provide evidence in this regard. "The fact that there is a clear military chain of command leading from Russian units in Ukraine to the Kremlin removes one important obstacle to a prosecution that has served as a stumbling block in other ICC investigations." In 2017, the states parties amended the Rome Statue to add the ‘crime of aggression’ – launching a war in violation of the UN Charter – to the ICC’s jurisdiction. But uniquely, the ICC can prosecute such crimes only when they are committed by members of the court, and Russia as a non-member is immune. Evidence in northern Ukraine When Russia withdrew its forces from northern Ukraine in early April, it was revealed that hundreds of civilians had been killed in the town of Bucha and in other areas surrounding Kyiv. Bodies were recovered lying in the open or in mass graves, and survivors gave accounts of torture and abuse. On 13 April, Khan visited Bucha and was shown mass graves in the town. He gave no details of his investigation but said ‘we have reasonable grounds to believe crimes within the jurisdiction of the court have been committed’. Khan announced that he had sent ‘forensic scientists, forensic anthropologists, analysts, investigators and lawyers’ to Ukraine for the investigation. It is expected that they will focus on the behaviour of Russian units towards civilians and on the effects of artillery bombardments and airstrikes on civilian areas in cities such as Irpin, Kharkov, Kyiv and Mariupol. These strikes hit hospitals, schools and power and water-treatment plants, all facts that can be considered as evidence of crimes against humanity. On 12 April, US President Joe Biden, who earlier in the month accused Russia of having committed war crimes, told journalists that in his view Putin was committing genocide in Ukraine: ‘I called it genocide [because] it has become clearer and clearer that Putin is just trying to wipe out the idea of … being able to be Ukrainian. … We’ll let the lawyers decide internationally whether or not it qualifies, but it sure seems that way to me.’ There are credible reports that Russia has used cluster munitions and thermobaric weapons, also known as fuel-air explosives, since the invasion, but their use is not specifically prohibited by the Rome Statute. For instance, several NATO nations use fuel-air explosives for clearing minefields. But the ICC does consider these weapons to be indiscriminate in nature, and their use outside tightly controlled circumstances can be considered a war crime. |
Chain of command The ICC seeks to indict commanders rather than their subordinates because indicting thousands of suspects would swamp the trial process. Prosecutors aim to indict the most senior figures possible, and this will influence which incidents the prosecutors choose to concentrate on. Firstly, ICC prosecutors will concentrate on incidents that clearly demonstrate mistreatment of non-combatants. The laws of war permit attacks on dual-use military-civilian sites, provided that civilian casualties are not disproportionate. But determining whether an attack qualifies as ‘disproportionate’ is complex and it is a question that prosecutors prefer to avoid if possible. Secondly, they will choose incidents where it is possible to identify a responsible Russian unit. To do this, the ICC may ask NATO member countries for supporting intelligence, including satellite photographs and communications intercepts. Prosecutors have no formal power to subpoena states for this information, but countries have often cooperated with these requests in the past. For example, the UN’s International Criminal Tribunal for the former Yugoslavia received intelligence information from France, the United Kingdom and the United States. The US Senate passed a unanimous resolution on 15 March calling for the government to assist international tribunals such as the ICC in investigating Russian war crimes. And thirdly, prosecutors will concentrate on incidents that might persuade judges that higher command is responsible. Identifying chains of command has been the bane of several recent war-crimes trials. For example, prosecutors had difficulty proving that former Serbian president Slobodan Milosevic had been formally in command of militias committing ethnic cleansing in neighbouring Bosnia. Likewise, they could not find documents showing that former Liberian president Charles Taylor had commanded diamond-smuggling militias that committed atrocities in Sierra Leone. In the trials of both men, prosecutors spent a great deal of time attempting to prove they had been in charge of these units because they had controlled their finances at the time. The ICC’s Ukraine investigation may largely avoid this issue. The actions by Russian forces that have given rise to war-crimes accusations were committed by regular Russian units tied to an official chain of command. Article 87 of the Constitution of the Russian Federation stipulates that the president is supreme commander-in-chief of the armed forces and that the Security Council of the Russian Federation is responsible for implementing presidential orders (even if it does not have the power to contravene these orders). This suggests that both the president and the members of the Security Council bear responsibility for the conduct of the war, meaning that they could be charged under the ‘joint criminal enterprise’ doctrine. "Several features of the law of war suggest that Putin will be among those indicted by the ICC, should it issue indictments." Several features of the law of war suggest that Putin will be among those indicted by the ICC, should it issue indictments. The ICC does not grant immunity to heads of state or government – having previously indicted Sudan’s Omar al-Bashir and Libya’s Muammar Gadhafi – and it is not necessary to convict subordinate military commanders before charging a supreme commander. All commanders are considered equally culpable for war crimes, with no dilution of responsibility between one level in a chain of command and the next. And charges of war crimes and crimes against humanity do not require proof of intent, which is difficult to obtain. Instead, prosecutors must prove a defendant knew, or should have known, that units under his command were committing war crimes and that he failed to prevent the crimes or punish those responsible. The arrest problem Richard Goldstone, the first prosecutor for the UN’s Yugoslavia tribunal, once observed that the international community functions as the ‘arms and legs’ of a war-crimes court. Indeed, the ICC does not have the power to issue sanctions, and it relies on states to bring suspects to court. Putin, if indicted, will not turn himself in as long as he remains president, and if he does not die in office, his successor would probably refuse to deliver him to the court. But ICC members would be obliged to arrest Putin should he enter their territories, and knowing this, he would stay away. ICC members are bound to arrest a suspect entering their territory, but they are not obliged to sanction states that do not cooperate with the court. Since Russia is already subject to significant international sanctions, members could decide to link sanctions relief to cooperation with the ICC. Alternatively, Russian negotiators could demand as part of a peace deal with Ukraine that the ICC drop its investigation or indictments of Russian individuals. While the ICC itself cannot do so, the Rome Statute states that the members of the UN Security Council can suspend an ICC indictment if they decide that doing so would be in the interests of peace. Such a suspension would technically be for a one-year period, but it could be renewed indefinitely. Investigations in other forums The UN’s Human Rights Council has launched its own investigation, and its findings could be used to bring a case against Russia at the UN’s International Court of Justice (ICJ). However, the ICJ adjudicates disputes between states and is not a criminal tribunal. It can issue advisory opinions but can only make binding judgments if both states, in this case Russia and Ukraine, agree to submit to its decision. The Council of Europe also has a war-crimes inquiry underway, but Russia quit the organisation in March, meaning that any judgment made by the Council’s European Court of Human Rights will be moot because it is binding only on council members. Domestic courts in more than a dozen countries have universal-jurisdiction powers, which enables them to try war crimes committed anywhere in the world. Like the ICC, however, these countries have no way to compel Russian suspects to come to court. Ukraine has launched its own investigation and, recognising that their means are currently limited, officials there have stated that they are happy to work in tandem with ICC investigators. Indeed, the Rome Statute views the ICC as ‘complementary’ to national justice systems and considers that it should act only if a state is unable or unwilling to carry out investigations itself. "Biden’s declaration that Putin is guilty of genocide implies US support for the ICC process, but the Ukraine investigation picks at the seams of the United States’ fraught relationship with the court." Biden’s declaration that Putin is guilty of genocide implies US support for the ICC process, but the Ukraine investigation picks at the seams of the United States’ fraught relationship with the court. In 2000, shortly before leaving office, US president Bill Clinton signed the Rome Statute, but Congress refused to ratify the treaty. The US is not a member of the court, therefore. Opponents of the treaty argued at the time that US officials could be subject to politically motivated prosecutions abroad and that the US already possessed an adequate judicial system in which war criminals could be punished. Since then, the US has voted at the UN Security Council to authorise the ICC to investigate war crimes in Sudan in 2005 and Libya in 2011. In 2020, Donald Trump imposed sanctions on senior ICC officials, including the then-prosecutor Fatou Bensouda, after her announcement that she would begin investigating war crimes in Afghanistan, including the conduct of US forces. The Biden administration lifted these sanctions in February 2021, but it has also criticised the ICC for its decision to investigate the actions of Israel, also a non-member of the court. In April 2022, US National Security Advisor Jake Sullivan said the US was sending investigators to Ukraine to ‘help build very strong dossiers of evidence for war-crimes prosecutions’. Sullivan underlined that the evidence collected could be used in various legal processes, including but not limited to the ICC investigation.
Outlook Khan will probably attempt to issue indictments by the end of 2022, because an extended investigation would invite criticism given the amount of evidence that has already become public. These indictments will not be comprehensive as they will not address every instance of criminality found by investigators, since that would lead to an unmanageable trial; instead, they will focus on the crimes most likely to yield a conviction. If the ICC uncovers instances in which Ukrainian forces have committed war crimes, Khan will have to choose whether to pursue charges through the court or refer the matter to Ukraine’s judicial authorities, provided they are willing and able to try such cases. Within Russia, any indictments issued by the ICC will strengthen Putin’s narrative that his country has been subject to a global conspiracy to weaken it. If indictments are released in 2022 and the war continues, as most expect it to, the idea that Putin and others should be legally culpable for their actions will hang over any attempt to reach a peace settlement. This would revive an old argument between peace negotiators and human-rights groups about whether peace should trump justice. Rights groups argue that without justice there can be no peace in former war zones. But negotiators tend to believe that if a war-crimes case is obstructing a peace deal, more lives may be saved by dropping indictments. |
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