Could Putin Actually Face Accountability at the ICC?

On Feb. 28, Karim Khan, chief prosecutor at the International Criminal Court (ICC), announced his intention to investigate alleged atrocity crimes in Ukraine. He noted his interest to proceed “as rapidly as possible” and asked the international community for financial and logistical support as well as personnel to expedite and sustain his office’s work.

The ICC investigation will cover suspected atrocities in Ukraine since Nov. 21, 2013, the start of Ukraine’s Euromaidan protests against the pro-Russian government of then-Ukrainian President Viktor Yanukovych.

In addition, the investigation will cover violence in Crimea and the eastern provinces of Donetsk and Luhansk as well as the country’s now full-fledged war with Russia. The prosecutor is expected to investigate both Ukrainian and Russian personnel.

But how does the court have jurisdiction over Ukraine and Russia—both ICC nonmember states? What crimes will the court consider? And can Russian President Vladimir Putin be held criminally accountable for his role?

Here’s what you need to know.

The ICC is tasked with holding individuals criminally accountable—for example, army soldiers and rebel fighters. This contrasts with, for instance, the International Court of Justice (ICJ), which settles disputes among states based on international law.

Ukraine recently filed an ICJ petition, asking the court to establish that Russia has no legal basis for invading. Russia alleged that Ukraine was perpetrating genocide against ethnic Russians and used that as a pretext for the invasion. Ukraine has accused Russia of planning a genocide. The ICJ, if it rules in Ukraine’s favor, could order Russia to stop all military actions, pay Ukraine reparations for damages, and commit to not using force against Ukraine in the future. But however the case resolves, no one will go to prison. That can only happen at a criminal court like the ICC.

Neither Ukraine nor Russia is a party to the ICC’s Rome Statute. Normally, this would mean the ICC does not have jurisdiction over any crimes committed in either country. But under Article 12 of the Rome Statute, a nonmember may accept the court’s jurisdiction over a defined scope. Ukraine has accepted ICC jurisdiction twice.

The first time was in April 2014, under then-acting Ukrainian President Oleksandr Turchynov, to address allegations of grave abuses related to the Euromaidan protests of 2013 and 2014. Ukrainian government attacks on protesters documented by human rights groups involved abductions, arbitrary detentions, beatings, torture, and killings. Individually and collectively, such abuses, if proven in court, would be tantamount to crimes against humanity.

One consequence of the protests and the ensuing state violence was Yanukovych’s removal from office in 2014. This triggered a resistance in Crimea to the south and Donetsk and Luhansk to the east. These regions were more friendly to Yanukovych, in part because of his pro-Russian stance. Putin took this as an opportunity to embed his soldiers into local militias and proceeded to invade and annex Crimea. Russia has held the territory ever since and supports insurgents in Donetsk and Luhansk.

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Alleged abuses by government and anti-government forces, including Russia, in Crimea include forced disappearances, unlawful confinement, and torture. Alleged abuses by government and anti-government forces, including Russia, in the eastern provinces include murder and ill treatment in detention. If proven, these actions would constitute crimes against humanity and war crimes.

It is worth noting that the ICC prosecutor’s office has said much of the evidence to date indicates alleged detention-related crimes by anti-government groups have been “of a more severe nature and on a significantly larger scale than [those committed by] members of Ukrainian Government Forces.”

These developments in Crimea and the eastern provinces prompted Ukraine in September 2015, under then-Ukrainian President Petro Poroshenko, to accept the ICC’s jurisdiction for a second time. Ukraine granted the court authority over suspected atrocities, from 2014 onward, with no end date.

Still, in 2014, Fatou Bensouda, the ICC’s chief prosecutor at the time, quickly commenced a preliminary examination, which she concluded in 2020. She found a reasonable basis to believe that war crimes and crimes against humanity had been committed in Ukraine. But she never initiated a full investigation. The probe stalled at the preliminary examination stage. It is not clear why.

Khan—who was elected chief prosecutor in February 2021 and came into office in June when Bensouda’s nine-year term ended—has now picked up the baton and will assess crimes from both the preliminary examination and any new atrocities carried out in Ukraine. Essentially, Khan is folding the current full-scale war into the existing probe. He can do this because Ukraine did not stipulate an end date when it accepted the ICC’s jurisdiction in September 2015.

On the same day as Khan’s announcement earlier this week, Lithuanian Justice Minister Evelina Dobrovolska formally requested that the ICC investigate crimes committed by Russian armed forces in Ukraine. She also asked the court to investigate Belarus, a new third actor in this story, for its assistance to Russia. Belarus, like Russia, is not a party to the Rome Statute and will likely also challenge the court’s jurisdiction.

As mentioned, the ICC has jurisdiction over the crime of aggression, which involves “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.” To a casual observer, this may seem like exactly what Russia has been doing in Ukraine, not only in recent days but since it annexed Crimea in 2014. Thus, one might think Putin and his forces should be held criminally accountable for invading Ukraine and attempting to seat a new pro-Russian government there.

But this won’t happen, at least not at the ICC and not for this crime.

Article 15 of the Rome Statute limits ICC jurisdiction over the crime of aggression to two scenarios. In the first scenario, the United Nations Security Council requests an investigation by the ICC. This is known as a “referral.” However, Russia is a permanent, veto-wielding member of the Security Council and would surely exercise its veto to stop this from happening.

In the second scenario, both the perpetrator state and the victim state are ICC members. But as neither Ukraine nor Russia is an ICC member, there is no way the court can investigate Russia for the crime of aggression. Simply, the court lacks jurisdiction.

But there are plenty of other abuses the ICC can and will investigate.

Under Article 59 of the Rome Statute, ICC members must arrest and transfer indictees to The Hague, where the ICC is located; individuals cannot be tried in absentia. Thus far, no one has been willing to do so in Bashir’s case. Following the African Union’s instructions not to apprehend Bashir, Chad and Kenya, both ICC members, allowed Bashir to freely travel to both countries in 2010. In doing so, they violated the Rome Statute. South Africa likewise failed to meet its obligations as a treaty member when it did not arrest him during a 2015 visit. None of these countries were sanctioned.

Nevertheless, in February 2020—two months after peaceful protesters deposed Bashir—Sudan’s new interim government announced it would cooperate with the ICC to prosecute him. Later, in August 2021, the Sudanese government signed a formal cooperation agreement with the court. Seven months later, however, Bashir is still free.

Other national leaders who have evaded the court include the now-late former president of Libya, Muammar al-Qaddafi, and Uhuru Kenyatta and William Ruto, the president and deputy president of Kenya, respectively.

Returning to Putin and Russia, as discussed, the Kremlin rejects the ICC’s jurisdiction over Russian nationals—the main argument being that Russia is not a party to the Rome Statute. This is the same argument the United States, which is also not a party to the ICC, has made with respect to allegations of torture and other abuses by the U.S. military and CIA during the war in Afghanistan. The United States has also made this argument on behalf of its ally Israel, also a nonmember, which is accused of illegal settlements in the Palestinian territories, among other crimes.

So attempting to hold Russian personnel criminally accountable at the ICC is sure to be an uphill battle.

The United States has vowed to hold Russia, and especially Putin, accountable. But if it tries to do so through the ICC, Russia will likely point out the hypocrisy of U.S. support for an investigation into a non-ICC member—yet more fodder for Russia’s anti-U.S. propaganda.

Even if any Russians are tried at the ICC for abuses in Ukraine—which, again, is not a given—it would likely be Russian soldiers, not their leader. This raises questions about fairness in the international justice system, just as in domestic justice systems the world over, where the powerful are too often able to escape the hand of justice.

Yet this time could be different.

On March 2, Khan issued a statement that he had received referrals from 39 countries. That is nearly one-third of the ICC’s members. Khan remarked, “These referrals enable my Office to proceed with opening an investigation into the Situation in Ukraine from 21 November 2013 onwards, thereby encompassing within its scope any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person.”

Without state referrals, Khan would have needed approval from the ICC’s pre-trial chamber judges to open a formal investigation. In the past, these judges have refused to authorize particularly contentious investigations. So this move, by such a large coalition of ICC member states, was significant.

A key challenge to the ICC’s success to date has been members’ cooperation in helping the court conduct its work. But as the historic mass referral from this week shows, ICC members are stepping up to help. In the future, perhaps their support could include arresting and transferring ICC fugitives that visit their countries. So members of Russia’s armed forces, and perhaps even Putin, may yet have their day in court.