ICC sidestepping red tape to pursue war crime conviction of Putin

Analysis: Speedy and muscular reach for justice builds on previous evidence for Russia

Was this week's decision by International Criminal Court prosecutor Karim Khan QC to bypass its judges in opening an investigation into suspected Russian war crimes in Ukraine evidence of a long-awaited new and more muscular approach to geopolitical crises?

What was certainly uncharacteristic was the speed with which Khan assessed the international mood and moved to ensure the ICC was not hamstrung by its structural links to the UN Security Council and the vetoes of its five permanent members, or by its own reputation for "glacial" justice.

How he did that showed a political astuteness too often absent over the years as the world has clamoured for justice for those directing atrocities in Syria, for example, while the ICC, the court of last resort for establishing criminal culpability, looked on apparently helplessly.

In the case of Ukraine, the court had already begun an investigation into possible Russian crimes there since late 2013, the period leading up to the annexation of Crimea during which pro-Russian president Viktor Yanukovich was ousted and scores of protesters were killed in the capital, Kyiv.

‘Operational challenges’

On foot of that investigation, Khan's predecessor, Fatou Bensouda, declared in 2020 that, in her assessment, there was enough evidence from the fighting in eastern Ukraine and Crimea to launch an investigation.

Despite that, however, judicial approval for the investigation never materialised due to a cocktail of “operational challenges”, including lack of resources and the coronavirus pandemic, and the inquiry went no further.

That was not going to happen again. Reviewing that original investigation, Khan this week that said he too believed there was evidence that both war crimes and crimes against humanity had been committed in Ukraine – and a new investigation should encompass any new allegations.

What happened next was that rather than grind through the bureaucratic gears by which ICC judges back or reject the recommendation of the prosecutor, that process was sidestepped.

On Wednesday, 38 governments, signatories of the Rome Statute that set up the ICC – including Ireland and the Netherlands – came together to refer the Ukraine crisis to the prosecutor for investigation. Lithuania made a separate referral last Monday, bringing the total to 39.

‘Ensuring justice’

“This joint request for an ICC investigation reflects growing alarm about the humanitarian crisis gripping Ukraine,” said Balkees Jarrah of Human Rights Watch. “These member governments are making clear that serious crimes will not be tolerated – and that the ICC has an essential role to play in ensuring justice.”

In effect, this was a quantum of humanitarian outrage.

Minister for Foreign Affairs Simon Coveney said the referral would allow Khan to begin his investigation "immediately" and would "promote justice and accountability".

Although neither Russia nor Ukraine are parties to the Rome Statute that governs the ICC – Russia "unsigned" in 2016 – the court does have legitimacy in this war because Ukraine has accepted its jurisdiction in the past.

That is enough to launch a complex international legal process that could ultimately see Vladimir Putin convicted as a war criminal.