In early March, the International Criminal Court (ICC) announced that it is looking into possible war crimes in the Russian invasion of Ukraine. Crimes against humanity are also something the ICC intends to look at in the ongoing Russian invasion of Ukraine.
Some of the major elements of war crimes include willful killing, extensive destruction, causing great suffering willfully, appropriation of property, and intentional targeting of civilians.
Crimes against humanity include murder if committed as a part of a systematic and widespread attack directed against civilian populations.
It Is a Tough Road
According to Karim Khan, the ICC prosecutor, there is reasonable cause to believe Russia has committed war crimes in Ukraine. The ICC prosecutes four offenses, war crimes, crimes against humanity, the crime of aggression, and genocide. If you have been following events in Ukraine closely, most of the crimes mentioned are evident in Ukraine. However, bringing Russia, and particularly Putin, to justice may not be as straightforward.
The biggest challenge is that Russia and Ukraine are not signatories to the Rome statute which created the ICC. In other words, Ukraine cannot refer to the alleged crimes. Ukraine has accepted the ICC’s jurisdiction twice in the past, including in 2014 when Russia invaded Crimea.
However, Russia was a signatory to the Rome statute but withdrew in 2016 when the court called out its annexation of Crimea as an occupation. The fact that Russia is not a member of the ICC complicates issues because the court does not have jurisdiction over crimes committed by individuals whose country is not a party to the ICC.
Alternatives to the ICC
The only exception is when the UN Security Council refers a Rome statute nonparty to the court, which may not be an option because Russia is a veto member of the UN Security Council. The only other exemption would be if genocide is an element in a war. Under such circumstances, even veto powers cannot protect the aggressor. “Even if Putin were to face war crimes charges, he would have to be arrested in a country where the ICC has jurisdiction,” says criminal lawyer David Benowitz of Price Benowitz Accident Injury Lawyers, LLP.
An alternative for ICC would be national courts that have universal jurisdiction laws. Universal jurisdiction laws allow national courts to prosecute individuals of other nationalities for offenses committed outside the nation.
A good example of universal law application is the January sentencing to life in prison of a Syrian intelligence officer in Germany for war crimes committed in the Middle Eastern country. Another example is the 2015 prosecution and jailing of two Rwandan men accused of organizing and leading a rebel force in the democratic republic of Congo. Coincidentally, the prosecution and sentencing happened in a German national court.
Still A Tough Road
Even Russia has similar laws, meaning Putin could have considered that possibility. Invoking a universal jurisdiction for another country’s leader may not be as easy. In Putin’s case, the only possible way is if he was removed from power by a regime that is willing to see him brought to justice.
Ukraine has filed a case against Russia in the international court of justice for its invasion under the pretext of protecting Russian-speaking Ukrainians from an alleged genocide perpetrated by Ukrainian authorities. This move can only be viewed as symbolic because the court’s jurisdiction over the matter seems to be in doubt.
