A Jurisdictional Analysis of the ICC Over the Russian-Ukrainian Crisis

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On Friday, March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and the Russian Presidential Commissioner for Children’s Rights Maria Lvova-Belova for the war crimes, humanitarian violations and the alleged scheme to deport Ukrainian Children from Russia (Picheta & Said-Moorhouse, 2023). As per the evidence held by the ICC against President Putin, the court believes he should be held responsible for the committed criminal acts during the continuing Russian-Ukrainian, besides his failure to “exercise control properly over civilian and military subordinates who committed the acts.” However, is the ICC able to put the Russian president on trial? To build credible predictions, this article gives further insights into the ICC’s creation and working mechanism.

ICC: Creation and Working Mechanism

By virtue of its creation, the ICC was aimed at reducing the intensity, scope and quantity of international crimes committed by different states and convict those guilty of the crimes. However, in practice, it is ineffective based on several limitations in its jurisdictional procedures, organizational structure and enforcement mechanism.

The ICC was originally established to overcome the flaws and limitations of the previous tribunals/courts. The idea of establishing international tribunals can be traced back to WW-I when the victorious allies established temporary tribunals for trials of the defeated states’ war criminals, including state officials, such as Kaiser Wilhelm II (Coban-Ozturk, 2014). However, no serious action was taken against the Kaiser; due to the Netherlands’ refusal to extradite Kaiser, as well as the preservation of the American members of the tribunal’s commission, claiming that it was neither legal nor appropriate to try the head of another state (Sadat, 2014). Although International Law legitimized establishing such tribunals as per Article 227 of the Treaty of Versailles, many experts refused the idea, arguing that it would threaten/breach states’ sovereignty until after WW-II (Mensa-Bonsu, 2015).

Post WW-II, the victorious allies (USSR, UK, USA, and France) established the Nuremberg Military Tribunal in 1945; for the trials of the Nazi government for their inhumane crimes during the war (Dugard, 1997). Not only was it based on a treaty, but it also specified War crimes, crimes against humanity, and crimes against peace to be punished under International Law, even if not considered crimes under National Law (Coban-Ozturk, 2014). The tribunal was later referred as the “Nuremberg Principles”. In 1946-47, another military tribunal was established in Tokyo to try the Japanese ministers and military officials based on similar principles as those of the Nuremberg Tribunal (Carroll, 2000).

The fact that both tribunals were established by the victorious made the world suspicious that there could be abuses and judgments driven by political preferences/interests. However, the International Community’s desire for universal jurisdiction was solidified. In fact, not only did WW-II lay the foundations for establishing ICC, but it also developed International Law. In 1948, the UN adopted Genocide as an international crime to respond to the Nazi government’s crimes during WW-II (Mensa-Bonsu, 2015). Besides, the UNGA, in 1949, assigned the ILC the task of preparing a draft statute for establishing ICC. Nevertheless, the eruption of the cold war in the 1950s delayed the ILC’s work (Wright, 1952).

By the end of the cold war, and the fall of the USSR in 1989, the ILC presumed its work, and in 1991, a draft code for the crimes to be punished under ICC was adopted (Wald, 2006). Then, in 1992, the ILC provided the UNGA with a report with the basis for establishing the ICC, on which the GA agreed in 1994 (Dugard, 1997). Two years later, a preparatory committee was established to prepare the statute taken to Rome after the UNGA’s approval in 1994 (Sadat, 2014). In 1998, during the Rome conference, states started negotiating how the ICC should work. After a five-week conference, 120 states voted for the statute, with seven states (including the USA, China and Israel) against it and 21 absentees (The International Criminal Court, 2001). A ceremony, then, was held at the UN headquarters in New York that brought the Rome statute into force in 2002 (Coban-Ozturk, 2014).

During the second preparatory committee meeting following the five-week Rome conference in 1998, the states’ main concern was to limit the ICC’s powers; to preserve their national sovereignty (Barnett, 2013). That was one of the reasons why some states did not sign the Rome statute so that no other state could intervene in their affairs. Thus, states have agreed on the concept of “complementarity” when it comes to functioning of the ICC (Coban-Ozturk, 2014). The ICC would complement National Courts and would step in when states are unable -as was the case with the Democratic Republic of Congo-or unwilling -as was the case of Uganda-; to prosecute the guilty, based on Articles 4 & 17 of the Rome statute. Hence, the sovereignty of states would not be breached (Mensa-Bonsu, 2015). Besides, as per Article (5) of the statute, Genocide, crimes against humanity, war crimes, and crime of aggression should be prosecuted under ICC. This was defined in Resolution 6, adopted at the 13th plenary meeting in June 2010 (Sadat, 2014).

Moreover, the Rome Statute, like other international agreements/treaties, is based on the Vienna Convention on Treaties (1969); only states that have signed the Rome statute and become state parties would abide by it (Prakash, 2002). Furthermore, according to Articles 11 & 12, the court can only investigate a crime after its establishment date and after the state has officially signed the Rome statute (Baros, 2003). For instance, the court started functioning in 2003. However, if a state (x) joined in 2010, the court would investigate the committed crimes after 2010 unless the state referred a specific case to the ICC before either its signatory date or the functioning of the ICC date (Sadat, 2014).

Moreover, Articles 4 & 12-17 specify that the ICC can investigate crimes committed by nationals of its state parties; on the territory of a state party. The ICC can also investigate crimes committed on the territory of a non-state party if, and only if, the case is referred to it by the state itself (i.e., self-referral), based on an agreement between the Office of the Prosecutor and the state, as specified in part 9 of the statute, or if a case is referred to it by the UNSC, as the cases of Darfur, Sudan and Libya (Prakash, 2002). Also, Article 15 specifies that the prosecutor can initiate an investigation (i.e., Proprio motu) (Kaye, D., et al., 2005), as the investigations in Kenya and Cote D’Ivoire (Barnett, 2013). However, the state should accept the ICC’s jurisdiction according to Article 12, besides the cooperation of state parties, NGOs and UN organs to collect the needed information (Kaul, 2005), as specified in Article 53. However, the UNSC can delay an investigation for up to 12 months (Barnett, 2013).

Furthermore, the ICC is not a “post-conflict tool”, for crimes could be punished during war and peace times, whether they are committed on international or domestic levels (Kaye, D., et al. 2005). For instance, although the DRC was in a transition period, the ICC still needs to investigate the case; due to the Congo’s weak judicial system (Kaye D. et al., 2005; Barnett, 2013). Nevertheless, does the ICC have universal jurisdiction, as was the aim of its creation in the first place?

ICC’s Limitations and the Case of Russia

Thanks to the fear of giving up some of their national sovereignty (Mensa-Bonsu, 2015), states planned for a weaker ICC (Sadat, 2014) with the concept of “Complementarity”, membership, and the powers of the UNSC. In other words, to preserve their national sovereignty, many states rejected the Rome Statute, including three permanent states of the UNSC: USA, Russia and China (Carroll, 2000). It means that: first, those states, which are not ICC members, are free to commit whatever crimes they want until the SC refers their cases to the ICC or the ICC receives self-referrals from them (Sadat, 2014). Second, the three SC members’ cases would only appear after the court through self-referrals or SC referrals (Mensa-Bonsu, 2015).

The problem worsened with the special agreements signed between UNSC members and other non-ICC state parties, such as the 2003 USA and India agreement to not surrender criminals from both sides to the ICC (Koshy, 2004). Hence, the work of the ICC is further limited; as the UNSC’s allies who had not signed the statute would not be punished; especially since the UNSC is criticized for being politically motivated and selective while referring cases to the ICC (Baros, 2003; Wald, 2006). For instance, Russia and China vetoed the resolution for referring Syria’s case in 2014 to the ICC to prosecute Al-Asad’s government for its human rights violations against Syrians. On the other hand, during the same year, Russia warned Ukraine to refer its case to the ICC for moving against pro-Russian separatists in east Ukraine and killing a few insurgents (Mensa-Bonsu, 2014).

Another limitation is in Article 24 of the statute; even state parties can reject the ICC’s jurisdiction for seven years after joining the court (Baros, 2003). This is besides the concept of “complementarity”; for states could challenge the admissibility of the cases and prove their ability or willingness to investigate in their National Courts (Sadat, 2014), as was the case with the Sudanese government that admitted its ability to prosecute Al-Bashir (Kaye, D., et al., 2005). In addition, the UNSC can delay or close the investigation of the ICC (Prakash, 2002).

These are some of the structural limitations and criticisms towards the ICC.

Regarding the Russian case, by February 2023, after almost one year into the Russian-Ukrainian crisis, Russia had committed several atrocities against civilians in Ukraine; the death tolls have exceeded 8,000 civilians over a year, along with approximately 5,000 missile strikes, 3,500 airstrikes and 1,000 drone strikes against Ukraine were recorded (OHCHR, 2023). Undoubtedly, these are all considered crimes against humanity and also fall under the category of crimes that the ICC could prosecute. Consequently, per Article 15 in the Rome Statute, the ICC issued a warrant arrest against Putin and would like to proceed with the investigation. However, since Russia is not a member state in the ICC, the ICC’s warrant arrest would not be held effective unless Moscow hands over Putin or gets arrested outside Russia and in a state that is not a Russian ally. Besides, as a permanent UNSC member and given the power of the UNSC to delay or close ICC investigations, it is quite a low chance that Putin would get arrested and prosecuted.

Nevertheless, what if Moscow chose to pay more attention to its image before the International Community? What if public opinion, at any time, voted against Putin and Russia’s officials and put more pressure on Moscow? This might have worked well if Russia were not a UNSC permanent member. There might have been high chances for Moscow to hand over Putin or any of the Russian military officials who committed humanitarian crimes against Ukraine to the ICC. However, the situation now is critical, and it is still too early to conclude.

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