The International Criminal Court (ICC) appears to be preparing for two criminal cases against Russian suspects. The Hague-based agency is investigating attacks on Ukrainian infrastructure and the deportation of children being re-educated in Russian camps, according to The New York Times and Reuters news agency.
It would be the first time that criminal cases have been opened because of the large-scale invasion, although a spokesperson does not want to comment on the news yet. The Kremlin has again made it clear today that it does not recognize the International Criminal Court.
A year ago, public prosecutor Karim Khan announced that he was investigating international crimes in Ukraine. It was not immediately clear what the criminal court would consider, but in recent months there have been signals that the investigation focused, among other things, on the deportation of thousands of Ukrainian children. “Children cannot be treated as spoils of war,” Khan said on a visit to Ukraine this month.
What are the ICC indictments about?
Independent researchers recently found that at least 6,000 children have ended up in re-education camps across Russia. It is not clear how many of those children are still there. “It would be the first time that the criminal court has started a case for kidnapping children,” says Iva Vukusic of Utrecht University. She investigates genocide and war crimes, and previously worked for the International Criminal Tribunal for the former Yugoslavia.
“The big question will be whether the prosecutor sees this as a form of genocide,” said Vukusic. “These children are taken and re-educated, with a different language and culture.” Moscow itself says it is taking care of children who have to flee their homes because of the war.
The court would also look at attacks on critical infrastructure. Russia denies that civilians are being targeted, but acknowledges that the Ukrainian energy network is a target. According to Human Rights Watch, Russia has arbitrarily and disproportionately bombed inhabited territory.
How does the International Criminal Court deal with these kinds of charges?
The criminal court prosecutes persons suspected of genocide, crimes against humanity, war crimes or aggression. It mainly concerns people who held a managerial position, ie political leaders or commanders. Since its establishment in 2002, 43 arrest warrants have been issued, only five of which resulted in a conviction. In 40 cases, these concerned charges of crimes committed during conflicts in Africa.
If the public prosecutor thinks there is enough evidence, it will first be presented to judges. They then have to issue arrest warrants for the suspects, because the criminal court does not pass judgment in absentia. The person has to be important enough – a case costs a lot of money and is time consuming.
“But the criminal court has no police services to track down and arrest people,” says NIOD researcher Thijs Bouwknegt. “That’s why they depend on the cooperation of states. So when it comes to Russian suspects, Russia will have to hand over suspects.”
What else happens to record crimes in Ukraine?
Ukraine says it has already recorded 70,000 war crimes. That also complicates the role of the criminal court, says Bouwknegt. “The ICC is there for when countries do not want or cannot do anything themselves. The judge can say: why do we have to issue an arrest warrant if Ukraine is already working on it?” The fact that the court is considering it also has to do with the pressure from fifty countries, including the Netherlands. They insisted on an investigation.
At the same time, it is unclear whether the criminal court has jurisdiction over the issue of the crime of aggression, i.e. whether Russia invaded Ukraine without just cause. This is because Russia – and also many other countries such as the US – are not members of the ICC. That is why there is a lot of discussion among lawyers about whether there should be a separate tribunal that does have this jurisdiction, says Bouwknegt. That should come from the UN and then exist alongside the criminal court. Such a tribunal could be mandated to try people in absentia – which the ICC cannot do now.
For example, the International Criminal Tribunal for the former Yugoslavia was established earlier. This included the mass murder in Srebrenica. This tribunal was mandated by the UN Security Council. That is not an option for Ukraine, because Russia is also a member of the Security Council. However, the UN General Assembly could appoint a tribunal, which has never happened before. The question is how much such an initiative can achieve without the support of the Security Council.
Will Putin ever stand trial, or other Russian leaders?
For the time being, that chance seems small at the International Criminal Court. Charges against Russian figures for the attack on Ukraine seem to be a symbolic step for the time being. “They can’t have anyone arrested. But they can send a message to the whole world,” says Vukusic of Utrecht University.
And while an arrest of high-ranking Russians now seems out of the question, this may change in the future. This was also shown earlier at the International Criminal Tribunal for the former Yugoslavia. Radovan Karadzic and Ratko Mladic were on the run for fifteen years. No one thought they would ever be caught, but they eventually did. “Political circumstances can change,” concludes Vukusic. “It’s a long process, which could take not a few months, but five or 10 years, or even longer.”
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- German minister calls for a tribunal in The Hague to try Russian leaders