ICC on difficult path to justice for atrocities in Ukraine

Hague court challenges include getting Putin physically in dock to try him for war crimes

When Joe Biden responded to a question last week by saying that yes, he did believe Vladimir Putin was "a war criminal", there was a sense that "the world's policeman" had spoken, that the growing litany of atrocities in Ukraine could not be allowed to lengthen.

Unfortunately, that’s not how war works. Even more unfortunately, it’s not how international justice – a fragile system whose roots are shallow, whose resources are inadequate, and whose Great Power support depends on nothing as much as geopolitical expediency – works either.

The limits of international justice, and particularly of the International Criminal Court, have never been more relentlessly exposed than during the Syrian civil war, which left half a million people dead, obliterated ancient cities and threatened regional stability.

Not for nothing is Mariupol, where more than 2,000 people have already died, now being given the terrifying epithet of “a European Aleppo”.


Asked if Biden's use of the term "war criminal" indicated some kind of new urgency, the ICC's founding prosecutor, Argentine lawyer Luis Moreno Ocampo, put his finger on the reality.

“What President Biden said was a political statement, nothing more. Is Biden ready to provide information and evidence to support his words? That is the challenge. The prosecutor needs more than words. He needs evidence.”

Just days after Russia's invasion of Ukraine on February 24th, the present-day ICC prosecutor, Karim Khan QC, said a war crimes investigation opened in 2014 at the time of the annexation of Crimea would be extended to include the current fighting.

Credibility test

Although the impression was given that the prosecutor had sidestepped the ICC’s red tape to begin the investigation on the basis of the support of a quantum of member states, in fact Khan did submit a request for authorisation. It’s being considered by a pre-trial judges’ chamber.

However, having given the impression that a rapid investigation is already afoot, it will be crucial for Khan's credibility that war crimes in Ukraine do not go unanswered as they have done for 11 years in Syria. "This is a test for the court and a test for me," he acknowledged recently.

There are legal options in regard to Ukraine – but not many and none of them easy.

One is that Ukraine might hand over to the ICC detention centre in The Hague as senior a Russian officer as possible, someone who has already been detained in the fighting and whose level of local culpability can be established from the multitude of sources on the ground.

This would give the ICC an opportunity to issue an indictment and open an early trial around which the collation of evidence could begin.

It would be positive for the court’s dented credibility as global outrage grows. It would be good for Ukrainian morale. Most importantly, it would show Putin’s officer corps in the field that he cannot protect them from arrest, international opprobrium and their day in the ICC dock.

Crime against humanity

In terms of going after Putin himself, the difficulty is to establish a chain of evidence than links the 21st-century dictator safely ensconced in the Kremlin to the visceral horrors of a bloody onslaught and its victims.

One potentially productive avenue is the crime of forced displacement, which can be prosecuted under international law as either a war crime or a crime against humanity.

Given that, according to weekend UN figures, more than 10 million people have already been displaced during the fighting, there is self-evidently a case to be made that forced displacement in Ukraine is a consequence of Russia’s military strategy.

And given that Vladimir Putin is an autocrat who personally instigated the invasion and may alone be privy to its ultimate goal, it seems equally reasonable to suggest that his is the directing mind behind that strategy – and that he is liable to be indicted as such.

The bottom line, however, is that trials in absentia are not allowed under article 63 (1) of the Rome Statute, which established the ICC. Unless that changes, the die is cast: for justice to be done, Vladimir Putin will have to be there to face it.